Your Guide to Child Custody After Separation
As much as people try to keep the children out of their relationship issues, at some stage you might need to make sure there is a clear structure in place for their living arrangements and upbringing.
Child Custody is a big part of this discussion and relates to the routine of time in each parent’s care. This is quite a separate issue from that of responsibility for the care, welfare and development of a child.
You may be one of the lucky couples who can work through this process in a civil manner and come to an agreement as to how children will be raised. In emotional situations such as separation and divorce, it is quite common for couples to become anxious, possessive, vindictive, or unreasonable when it comes to children – even when they had agreed to be reasonable and “child focused” in the early stages of separation.
We regularly see examples of spouses who:-
- Prevent the other parent from seeing the children altogether
- Refuse to pay for the expenses for the children
- Do not properly cater for dietary and medical issues
- Behave vindictively and refuse to abide by previous agreements
- Speak to their children, in a negative manner about the other parent
After separation, in the absence of Court Orders, both parents continue to have joint responsibility for making decisions about both day-to-day and long term care, welfare and development of children regardless of their ongoing relationship and this “default” position may not be in the best interests of the children because of the conduct of the other parent.
Courts are particularly careful to ensure the children’s interests are placed ahead of the parents in these situations.
One way to be able to enforce your legal rights and responsibilities, is to negotiate legally binding agreements which provide a framework for care arrangements for the children, are called “Parenting Orders”.
(The familiar terminology of “custody” and “access” or “residence” and “contact” are no longer used in the Family Court jurisdiction.)
THE THREE MAIN TYPES OF PARENTING ORDERS
Because every situation is different, Courts can create different types of Parenting Orders. There are three common types of Parenting Orders that come up regularly between separating couples:
- Orders that specify the child’s living arrangements
- Orders that specify the time the children spend with each parent
- Specific Issues Orders – Orders dealing with any other aspect of parental responsibility generally relating to the special needs of a child or children ie: regarding religion, schooling , health issues, communication between parents or the issuing and control of passports and overseas travel.
HOW TO GET A PARENTING ORDER
Most Parenting Orders are negotiated directly between parents or with the assistance of mediators, counsellors or lawyers.
If there is any dispute about appropriate arrangements for children, then an Application can be made the Court to determine appropriate Orders. The Court makes a decision based on several factors, but the paramount consideration is the welfare of the children.
WHO CAN BE INCLUDED ON A PARENTING ORDER?
Parenting Orders may be applied for by any person concerned with the care, welfare and development of children. This is normally the parents but may also include other people eg: grandparents, step-parents and other concerned persons.
HOW CAN YOU GET A PARENTING ORDER PREPARED?
It is important this is to ensure that any Parenting Order is detailed enough to be practical and enforceable.
An Application to the Court can be made “administratively” for the terms of an agreement you have reached to be made an enforceable Court Order by filing an Application in the Court, along with Orders signed by each parent (“Consent Orders”). This is effectively a joint request for the Court to make the agreement you have reached into Orders. You can provide the terms of your agreement to your lawyer and ask them to “convert” them into an enforceable Court Order and once the agreement has been “stamped / sealed” by the Court it becomes an enforceable Court Order.
This is a very common method of creating structure for the children and each parent and reduces the need to be constantly negotiating and communicating with the other parent.
The children have a predictable routine and you are each able to more easily make plans for the future eg: organising a holiday or “rostering” responsibilities related to sporting commitments and extended family gatherings.
Sometimes it is not possible to negotiate an agreement, even with the assistance of lawyers and/or mediators, and it is necessary to make an Application to the Family Court. Not many people know that even after a Court Application is commenced over 95% of cases are resolved with an agreement, rather than having to rely on a Judge to impose Court Orders on parents after conducting a trial. This is due to many factors including the costs of legal fees, the delays in the Court system and importantly, a focus on Judges and lawyers on attempting to resolve impasses and disagreements. Of course there are situations involving urgent safety issues for children and the Court can act quickly and decisively to ensure children are not placed at risk or are removed from risky situations.
We can assist you by advising about appropriate Parenting Orders, negotiating Parenting Orders, drawing up appropriate documents, acting in Court proceedings or assisting in mediations.