Custody of Children: What Separated Parents Need to Know

If you have recently separated or will soon separate, you need advice on what may occur to custody of children. 

When it comes to their children’s future care, separated parents usually agree. Some parents have their kids live with one parent and only see the other on weekends, special occasions, and holidays. For others, the kids might live in two different houses and see both parents equally often. The arrangements fall somewhere in the middle for many. 

However, not all agreements can be reached peacefully, or there might be exceptional situations that lead parents to file a lawsuit in family court. Courtroom litigation over child matters is typically seen as a last resort because it can be extremely emotionally taxing for all parties. That being said, if you’re thinking about requesting custody as part of a separation, it’s critical to comprehend the procedure and its consequences. In this article, we want to clarify the importance of obtaining child custody.

What is the custody of children?

The family law courts no longer use the term “custody,” but other people and the media frequently use it. In Australia, the Family Law Act 1975 governs parenting arrangements in addition to divorce and separation, property division, and financial maintenance. The preferred terms for these agreements are “live with” and “spend time with,” which have replaced the terms “custody” and “access.”

Child Custody Laws in Australia

Australia’s Family Law Act of 1975 governs child custody laws. Under the Act, parents have responsibilities, not rights, and child custody decisions occur with the child’s best interests in mind.

The interests of your child should come before your own as a parent. Additionally, the Act makes no assumptions regarding parental roles because it is gender-neutral.

Legal terminology for child custody is parental responsibility. Statutes require both parents to have an equal role in providing for the child.

This implies that both parents have a say in decisions that affect the child’s long-term circumstances, like where the child will live, what school they will attend, their upbringing regarding religion, and critical medical choices.

Each family situation will have a different definition of shared responsibility, and each parent’s decision about how much time to spend with their child and what role to play in their life is highly personal. If the presumption of shared responsibility is not in the child’s best interests, the court may reject it.

What’s Changing?

The Family Law Act of 1975 included a presumption that a child’s parents should share parental responsibility for the child equally until May 6, 2024. This implied that the court would always begin by deciding that there should be an equal division of parental responsibilities when deciding what parenting orders to issue.

This was true regardless of the family’s circumstances or history.

The assumption of equal shared responsibility was only waived in situations where there were good reasons to suspect that one parent had abused the child or another child or that there had been domestic violence. The presumption did not hold in these circumstances.

The system failed to put children’s safety first. It issued orders that put them in danger due to the assumption of equal shared parental responsibility. There will be no presumption after May 6, 2024.

How to Obtain Custody of Your Child: Parenting Matters

Selecting custody arrangements is one of the many challenging parts of separation or divorce. At Family Lawyers Mackay, we are aware of the significance of making the best decision for your children’s welfare and custody.

The complexity of child custody cases depends on how quickly parents can reach a mutual agreement. If the parents consent, formalising and recording the agreements and proceedings is simpler. If they disagree, however, things could get trickier and even go to court.

Many family law cases end in a settlement without a court appearance, but the process can help the parties work together to reach a decision.

We hope to save you time and avoid drawn-out court proceedings by giving you straightforward legal advice on parenting responsibilities. We review the legal parameters under the Family Law Act that control child custody, including the best interests of the child and equally shared parental responsibilities.

Our family lawyers can also discuss alternatives like mediation to work out custody agreements.

The Federal Circuit and Family Court of Australia, also known as the family court, acknowledges and values that a child or children involved in custody disputes may have significant relationships with numerous individuals outside of their parents. This includes grandparents and other family members, all needing to feel treasured and preserved as much as feasible. Our advice to you about your position and options considers all of this. 

Children’s Best Interests

Under the new laws, courts must decide what parenting responsibility order is best for the child. Section 60CC of the Family Law Act 1975 outlines a court’s considerations when determining this.

If the parents both consent to the Child Custody Arrangements

Even in cases where there is no dispute over custody, it is crucial to record any verbal agreements between the parents. Verbal agreements alone aren’t legally binding or enforceable, and your relationship’s friendly nature could always turn sour. A written agreement safeguards if the relationship does not work out as planned. Consent orders or a parenting plan can be used to accomplish this.

Parenting Plans

A written agreement between parents that specifies the terms of their child custody arrangement refers to a parenting plan. This approach is flexible and especially helpful when parents need that kind of flexibility. It is advisable to consult with a lawyer who can help parents negotiate a settlement outside of court and include provisions for child support and fair time sharing. A fantastic team of family lawyers at Family Lawyers Mackay can assist with that.

Parenting plans don’t have to adhere to strict guidelines; they can be as broad or as specific as the parents choose. They can be updated as needed and are optional for long-term consideration. Typically, the plan includes information about which parent the child will live with, visitation schedules, birthday and holiday schedules, financial contributions, and decision-making processes. Include details like letters you send to your extended family and doctors. 

One benefit of having a parenting plan is that court appearances are not required. Although these plans aren’t legally enforceable or binding, courts will consider them when settling parent-child disputes.

Consent Orders

If the parents have amicably reached a custody decision, consent orders may be used as an alternative record-keeping mechanism. Unlike parenting plans, the Family Law Act makes court-approved consent orders enforceable.

After examining the directives, the Family Court will decide whether they are in the child’s best interests. If the agreement is approved, the court will formalise it in consent orders. Consent orders offer more security and certainty because breaking them may result in legal repercussions.

When the Parents Cannot Agree on the Custody Arrangements

If the parents cannot reach a mutually agreeable child custody arrangement, the court may decide for you. The court will issue an order binding on both parties and must be followed.

Before applying for parenting orders, you must complete some pre-action steps, such as reading a pamphlet and attending a family dispute resolution conference. A family lawyer will be necessary to assist with the application draft and ensure it maximises your chances of success.

The other parent now has a deadline to respond or acknowledge the claim. If no answer is received, the court will issue an order in your favour.

Parenting orders specify who gets to live where and with whom, how the child spends time with both parents, who are responsible for raising the child, who can communicate with the child, who will provide financial support, and how other important decisions are to be made. Throughout the whole process, our child custody lawyers in Mackay can help.

Sole Custody

One parent may make decisions regarding their child under the legal doctrine of sole parental responsibility without the other parent’s consent. You must present supporting documentation to convince a court that equal shared parental responsibility isn’t in the child’s best interests.

One abusive circumstance that could support a court decision in favour of sole custody is when one parent engages in domestic violence or other behaviours that endanger the child. In these situations, you must back up your claims with documentation like witness accounts and police reports.

If you have 50/50 custody, do you still pay child support?

Even when parents split custody of their child 50/50, child support payments may still be needed. 

This is because the formula for calculating child support considers the time each parent spends caring for the child and is based on both parents’ incomes.

However, compared to a situation where one parent had sole custody, the child support needed might be less.

Child support may not be necessary if both parents earn the same amount of money and spend the same amount of time with their kids. 

How is custody of a child determined?

When deciding who gets child custody in Queensland, the child’s best interests come first. The court considers a child’s wishes, relationships with each parent, and each parent’s capacity to meet the child’s needs.

Get Reliable Family Law Guidance.

Our family lawyers at Family Lawyers Mackay have given clients well-considered legal advice on issues related to child custody and parenting plans. As a legal firm, we have vast experience assisting clients with parenting-related issues, from cooperative consent orders to urgent injunctions.

It is best to speak with a child custody specialist to get clarification on your unique situation and how we can assist you in settling.

If you need assistance, contact a Mackay family lawyer at (07) 4847 0198 for a 20-minute free evaluation or send an online inquiry.

FAQs

Are Grandparents Eligible To Apply For Custody Of Their Grandkids?

Grantors can request visitation or custody, especially if they have played a significant role in the child’s life.

How Do Decisions About Child Custody Relate To Domestic Violence?

When determining custody, domestic violence is a significant consideration. The court may limit the offending parent’s custody rights to prioritise the child’s safety and well-being.

How Do I Change The Custody Agreement To What It Is Now?

If the child’s needs or situations have altered significantly, you can apply to the court to change the custody agreement. 

Is Mediation Necessary Before Filing For Child Custody In Court?

Parents must attend mediation to work out their differences before going to court.

What Are The Rights Of A Parent Who Has Sole Custody?

Orders for sole child custody essentially grant the parent who resides with the child sole child custody or the power to “control” the other parent’s time and participation in the child’s life and any decisions about the child’s long-term welfare.

Which Parent Gets The Kids?

It is imperative that you first and foremost comprehend that no legal framework exists that specifies who gets child custody in the event of a divorce. The decision regarding the children’s arrangements upon separation, therefore, rests with both biological parents. That women will inevitably become the parents of the children is untrue. It could be that this was the situation in the past. All the same, the intent behind the Family Law Act was to do away with the use of a person’s gender in determining custody.