Is child custody or access a concern? Are you worried about how your children will cope with your separation? Losing sleep thinking about whether or not you will see your children as much?
It’s common to worry about how your separation will affect your family. Fortunately, there are some simple things you can keep in mind to minimize the stress.
After separation, the best arrangements for children are those where the children continue to have a loving and meaningful relationship with both parents. The age of children is very important in deciding what custody arrangements will work. Arrangements may need to change over time to cater to the children’s developmental stages.
Have a Written Agreement about Child Custody in Place
Having a written agreement in place helps ensure both parents have a clear understanding about when they will spend time with their children. It also enables parents to be able to plan ahead. An agreement should consider normal routines, holidays and special days such as Christmas, Easter, Father’s and Mother’s Day etc.
Each family is different, and any agreement should cater to your own family’s particular situation. Custody arrangements that don’t work well can cause a great deal of stress for both you and your children.
If you make an initial consultation with us we can give you a range of options and discuss the pros and cons of various child custody arrangements. It’s important that you are well informed so that you can decide what is best for your family.
Child Custody, Guardianship and Access
The Family Law Act has changed significantly in the last 25 years. The Act no longer uses terms such as “Guardianship”, “Custody” and “Access”. Instead the Act refers to “parenting orders”.
Parenting Orders may deal with many things including:
• Who a child is to live with;
• The time a child is to spend with a person;
• How a child will communicate with another person; and
• The allocation of parental responsibility (This can involve day to day decisions or long term decisions).
It is not only parents who can apply for parenting orders. Grandparents and any other person concerned with the welfare of a particular child can apply for parenting orders in relation to that child.
What if we agree on arrangements?
You don’t have to go to court about the arrangements for your children after separation. If you agree on arrangements, you can make a parenting plan or apply for consent orders approved by the Court.
A parenting plan is a written agreement that sets out parenting arrangements for children. It is not approved by a Court and therefore is not enforceable if a party does not comply with its terms. If one party breaches a parenting plan, and the parties are unable to reach a resolution about this, it may be necessary for one party to apply to the court for formal orders in relation to parenting matters.
A consent order is a written agreement that is approved by the Court and has the same legal force as any order made by a judge.
What if we can’t agree on Arrangements?
If you can’t reach your own custody agreement, you may wish to consider mediation or counselling to help you resolve your dispute. It is best to see an accredited family dispute resolution practitioner.
If you still can’t reach agreement, you can apply to the Court for parenting orders. When you file your application, you will need to file a certificate from an accredited family dispute resolution practitioner. The certificate must state you made a genuine attempt to resolve the dispute before applying to Court. Exemptions apply in limited circumstances such as where there has been child abuse or family violence. In determining children’s matters, the Court must consider the best interests of the child as the paramount consideration.
Presumption of Equal Shared Parental Responsibility (ESPR)
The Court must also apply a presumption that is it in the best interests of the child for the parents to have equal shared parental responsibility (ESPR). (This is different to equal time. Basically, it means the parents both have a say in decisions about long term issues for the children. This includes things like major medical decisions, religion, the children’s name and their education). This presumption can be challenged where there has been abuse, violence or there is evidence that satisfies the Court that it is not in the best interests of the child for the parents to have ESPR.
If the Court believes it is appropriate for the parents to have ESPR then the court must consider certain things set out under the Family Law Act. This includes considering whether the child spending equal time (sometimes known as shared care), or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.