A divorce or separation can be an incredibly difficult and emotional time for those involved. And if children are involved, it becomes even more complicated.
Besides dealing with the often acrimonious breakdown of a relationship, there are usually a range of complex financial and legal matters that must be untangled. But making sure the breakup has minimal effect on the lives of the children should always be the most important consideration.
In the case of a divorce or separation, Australian family law dictates that children have a right to enjoy a meaningful relationship with both their parents, but must be protected from harm. When determining custody arrangements, the law will always carefully consider the best interests of the children first and foremost.
So let’s have a look at a few of the different child custody arrangements and what the law looks at when considering the children’s best interests.
Understanding the legal terms
A number of legal decisions must be made when determining child custody. While your family lawyer will walk you through these decisions, it’s helpful to understand some of the terminology.
- Parental responsibility
According to the Family Court of Australia, parental responsibility refers to all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children. Each parent has parental responsibility for their children until the age of 18. Parental responsibility is not affected by changes in the relationship of the parents, including separation, divorce or remarriage.
- Legal custody
Legal custody refers to which parent or guardian has legal responsibility for taking care of and bringing up the children. Custody arrangements are usually joint or shared custody, but they can also be sole custody.
- Physical custody
Physical custody refers to where the child lives and who cares for the child. Like legal custody, physical custody can be joint or sole. Joint (or shared) physical custody means that the child will spend significant time (usually at least 40%) living with both parents. Both parents will share equal responsibility for the physical care of the child. Joint physical custody does not mean that parents are entitled to equal time with the child, but that they are both entitled to substantial and frequent time.
Sole physical custody means that the child lives with one parent, known as the custodial or residential parent. In almost all cases, the other parent will still have some kind of visitation rights.
- Parenting orders
Parenting orders are a set of orders made by a court about parenting arrangements for a child. If the parents cannot agree about custody arrangements for their children, then the courts can make orders about parental responsibilities.
Parenting orders can include who the children will live with, how much time the children will spend with each parent or with other guardians, the allocation of parental responsibilities, how the children will communicate with parents or guardians and any other aspect of care, welfare or development of the children.
Working out custody
When working out custody arrangements during a divorce or separation, the best interests of the children are considered first and foremost. In the case of older children, their preferences and views may be taken into account.
The children’s best interests are determined by a number of factors including the children’s preferences, the willingness and ability of each parent, practicalities (including financial situation, work situation and geographical location), and each parent’s lifestyle, background and culture. Many other factors can come into play when determining what constitutes a child’s best interests.
A number of factors should be looked at when considering custody arrangements including:
- Home situation and lifestyle
- Parental availability
- Practicalities like transportation and proximity to essential services
- Financial support
- Additional guardians (e.g. grandparents, step-parents)
- Work arrangements
- Medical needs
- Religious or cultural considerations
Some other factors that will affect custody arrangements include any parental criminal history or current associates, the parents’ medical or psychological background, and any history with drugs or alcohol.
In some cases, the children may be interviewed by experts (like court appointed child social workers) to determine their preferences. However, the children are not allowed to give evidence in court or attend court proceedings.
It’s always best to try to find an amicable out-of-court solution regarding custody arrangements to ensure a speedy resolution and minimal disruption to the lives of the children.
What type of custody arrangements are preferred?
Ensuring a meaningful relationship with both parents is usually in the best interest of the children, so courts will generally aim to award joint custody, both physical and legal, whenever possible.
Joint custody encourages parents to share responsibility for their child equally and emphasises children spending time with both of their parents.
However, joint custody doesn’t necessarily mean equal time with both parents. It can also mean frequent visits, generous contact and appropriate time with the parent that the child doesn’t live with.
Do I have to go to court?
Ideally, no. The best outcomes are decided out of court through negotiations and mediation sessions for family dispute resolution. If a resolution can’t be agreed on, then sometimes the courts are required. Court processes can be long and drawn out, and acrimonious for those involved. To ensure minimal disruption to the lives of the children, it’s always best to try to agree on child custody without a long court battle.
At the end of the day, regardless of what has happened to bring about the divorce, both parents have a responsibility to ensure the breakup and subsequent custody arrangements are in the children’s best interests and bring about no harm, emotional hardship, or ongoing trauma.