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5 Myths About “Custody” of Children

  1. It’s not called “Custody”
    There have been a series of changes to the law since the mid-1990s which have led to the modern emphasis being on a child’s right to have a meaningful relationship with both their parents. There is no longer an emphasis on the old-fashioned concept of children being treated almost like an item of property that you have “custody” of. Instead of “custody” and “access”, the Courts, lawyers and child experts now refer to whom the child “lives with” and who they “spend time with”
  2. The Parents Rights are Secondary
    Everything is about the Children When determining who a child will live with and who a child will spend time with, the Court’s primary consideration is “the best interests of the child.” This term is central in the Family Law Act and is the primary consideration of the Court when it comes to parenting matters.
  3. Parental Responsibility
    A parent does not have a “right” to spend time with their children, rather, that the children have the “right” to have a fulsome and meaningful relationship with each parent. “Parental responsibility” identifies the obligations that parents have for their children’s long term care and development such as their health, education and religion. The Court default position is that parents have equal parental responsibility for these decisions. Equal responsibility will not be mandated where (for instance) the child is at risk of abuse or family violence, where there is high conflict between the parents or where there is impracticality in application such as one parent being overseas.
  4. Shared Time
    If parents have a history of collaboration or there is an absence of dispute and where there is a healthy child/parent relationship with both parents, then equal time must be considered by a Judge. However, it is rarely suitable for a child. Travel time between homes, working hours of a parent, extracurricular activities and ages of siblings are all factors that are considered. “Almost” equal time will often be regarded as “sufficient” by a Judge. Consider your reasons for a “week about” arrangement (one week on, one week off) with the child’s perspective as the starting point to see if it works for the children.
  5. Equal Parental Responsibility = Equal Time?
    If parents cannot agree on the days and nights that children will spend in each household after separation, before an Application is made to Court, they must first attend mediation with a Family Dispute Resolution Practitioner and obtain a “Section 60I Certificate” of attendance. If mediation is unsuccessful, either parent may only then (save for special circumstances) make an Application to Court for a determination to be made as to the time the children spend with each parent. Equal time with both parents will be one of the many things to consider but is rarely awarded unless there is a high degree of collaboration, trust and goodwill between the parents. Often, children live with one parent and spend substantial and significant (but not equal) time with the other. The Court usually awards equal parental responsibility but not equal time. The two concepts are different.

What next?

Our team of Family Lawyers have resolved thousands of diverse cases, from relatively straightforward separations to splitting businesses, trusts and property portfolios spanning multiple jurisdictions. While every family’s situation is unique, our team has proven experience that will help guide your decision-making process.

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