Child Custody After Divorce
Separating can be an extremely difficult time for many, particularly where there are child custody issues. We are here to help you to negotiate parenting arrangements for the ongoing care and support of your child or children.
‘Custody’ (a word we often hear when talking about parenting) is old terminology. We now refer to ‘parenting arrangements’ and ‘parental responsibility’.
When talking about the ongoing care and support of your child or children, it is important to understand parenting arrangements versus parental responsibility. They are separate and distinct concepts.
What are ‘parenting arrangements’?
Parenting arrangements are the practical nuts and bolts of co-parenting – which parent a child will live with or spend time with after their parents separate and how that will all operate, down to the nitty gritty around birthdays, special occasions, school holidays and the rest.
Parenting arrangements can be made by informal agreement (e.g. a parenting plan, which is not legally enforceable), a legally binding agreement (e.g. by making an application for consent orders) or by court order, where the court makes a determination about what is best for the child.
In some parenting arrangements, a child may ‘live with’ one parent and ‘spend time with’ the other parent. The parent who the child lives with is the ‘primary carer’. In some cases (where appropriate) the child may live with the parents equally. In other cases, it may be considered not safe for the child to spend time with one parent at all. There is no hard and fast rule about parenting arrangements and consideration is always given to what is best for the child.
What is ‘parental responsibility’?
We love a good saying and here is one you will likely hear if you are engaged in legal proceedings in relation to parenting – “children have rights and parents have responsibilities.”
‘Parental responsibility’ is the responsibility parents have to make decisions about major long-term issues for the child. This includes things like where the child will go to school, major health decisions or religion. There is a presumption under the Family Law Act 1975 that it is in the best interests of a child for the child’s parents to have ‘equal shared parental responsibility’ for the child after separation.
However, this presumption does not apply in certain circumstances (for example, where there is family violence of child abuse), and in these cases, an order made by the court to give one parent sole parental responsibility of the child will result.
Equal shared parental responsibility = equal time?
No. Equal shared parental responsibility does not mean equal time with the children.
What do Judges consider in ‘child custody’ cases?
The Court makes orders that it considers to be in the best interests of the child when making a decision about a child, parental responsibility and parenting arrangements
How does the court determine what is in a child’s best interests?
The primary considerations to determining what is in a child’s best interest are:
- The benefit of the child of having a meaningful relationship with both of the child’s parents; and
- The need to protect the child from hard.
The Court gives greater weight to the consideration of the need to protect the child/children from harm, which is in accordance with the Family Law Act.
Furthermore, there are a range of other factors that the Judge will consider when determining what is best for a child pursuant to the Family Law Act. For example:
- the nature of each parent’s relationship with the child
- the attitude to parenting
- the ability to meet the child’s needs and
- the child’s right to enjoy their culture.
I disadvantaged because I am the Father?
No. The Family Law Act 1975 is gender neutral and does not make assumptions about parenting roles. Many Father’s have the primary carer of the child during the relationship and continue this role after separation.
Children spent 50:50 time with each parent, right?
There is no presumption about the time a child should spend with each parent. It is dependent on what is in the child’s best interests.
We are here to help you
At Umbrella Family Law, we understand that the wellbeing of children is a primary concern when ending a relationship. We know your children are important to you. Help us understand their needs and we can help you negotiate a child focussed parenting plan or court orders, depending on your circumstances.
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