Co-authored by Alexandra Coyle and Emily Molloy Gold Coast based Senior Associate and Law Clerk in Family Law at Robbins Watson Solicitors this article provides an overview on the family law aspect of child custody detailing the child’s best interests, mediation and effective tips when discussing child custody.
Child custody disputes are one of the most emotionally challenging issues that families can face during separation due the immense stress and uncertainty that these disputes inevitably involve. This article provides an overview of the child custody process highlighting the importance of prioritising the best interests of the child and exploring various custody arrangements as well as offering tips for effective communication and negotiations so that a fair and amicable agreement can be reached.
Understanding the Legal Process in Family Law
Child custody is governed by the Family Law Act 1975 (Cth). Under this legislation the paramount consideration when making any parenting arrangements is the best interests of the child. Understanding the basics of this legal framework will assist to alleviate some the stress associated with child custody disputes.
Generally, before any court proceedings are commenced parties should engage in negotiations to resolve any disputes. Negotiations can vary in appearance from in-person conversations between parents to various dispute resolution avenues.
If parties cannot mutually decide upon the child custody arrangements the Federal Circuit and Family Court of Australia requires, if safe to do so, that the parties engage in Family Dispute Resolution. The most common Family Dispute Resolution in Family Law is mediation.
Mediation
Mediation is a confidential process where an independent neutral third party acts as a mediator. At a mediation conference the mediator discusses with each parent different proposals for child custody and reverts proposals from one parent to the other as to reach a fair and just child custody arrangement that both parties agree to.
The goal of mediation is to reach a mutual decision on the child custody arrangements without the parties needing to go to Court. However, if mediation is not successful, a party can apply to the Court for the Court to decide on the child custody arrangements.
If one party does not feel safe to attend mediation with the other party, mediation can be skipped and either party can apply to the Court for assistance in determining the child custody arrangements.
Child Custody Process with the Court
If the parties have attended mediation, or skipped mediation as it was not safe, and the parties cannot mutually decide upon the care arrangements for the children, the parties will need to proceed to Court where a judge will determine the child custody arrangements.
If your matter goes to Court, it is ultimately the Court’s decision to make child custody arrangements that are in the best interest of the child. The Court takes into consideration various factors in relation to the child’s best interest including but not limited to the child’s relationship with each parent, arrangements for the safety of the child and the various needs of the child. Court proceedings are not short and sweet, rather they are lengthy and costly, not only financially but emotionally and mentally. It is crucial that other options to resolve any dispute in relation to child custody are sort prior to commencing proceedings.
Prioritising the Best Interest of the Child
The overarching principle in child custody arrangements is that any arrangement is made in the best interests of the child. This principle ensures that the child's welfare, safety, and development are the primary concerns in determining custody arrangements.
Key Considerations
When making any child custody arrangement various factors should be considered including:
Emotional and Psychological Well-Being: The child's emotional and psychological health is paramount. Ensuring that the child is in stable, loving, and supportive environments with their developmental, psychological, emotional and cultural needs being met is essential for their development.
Safety: It is crucial to ensure that the child is protected from any harm of family violence, abuse and neglect. If any allegations of abuse or neglect are raised and the matter is taken to Court, the Court will thoroughly investigate the allegations through various reports such as a child impact report or family report.
Relationships within the Family: Provided that it is safe and practical it is usually in the best interests of the child to maintain strong and healthy relationship with both parents as well as their siblings and other family members who are of significance to the child.
Views of the Child: Depending on the age and maturity of the child, the child’s view and preferences on their care arrangements may be taken into account.
Child Custody Arrangements
Child Custody arrangements can vary widely depending on the family's circumstances and the child's needs. Typically, both parents will retain equal parental responsibility in relation to the child meaning that parents jointly will decide upon major long-term issues relating to the child such as education, religion, health, name etc.
Joint parental responsibility does not result in joint child custody. If parents have the resources to share custody and it is the best interests of the child, the child’s time can be divided equally between each parent. Most commonly this is seen as a week about rotation of child custody.
Alternatively, if joint custody of the child is not practicable for some parents, the parents can still share parental responsibility, but the care of the child may be the child lives with one parent and spend certain blocks of time with the other parent that algins with the parents’ ability to care for the child. This caters to parents when one parent has a demanding work schedule or works away and cannot afford extended time, arrangements can be made that are suitable to the child and the parent’s ability to care for the child.
Effective Communication and Negotiation Tips
Open and Honest Communication
It is imperative that each parent has effective communication with one another when attempting to resolve child custody disputes. To ensure that the communication remains effective each parent should ensure that all communications about the child during the negotiation stage is centred on the child’s need and best interest and not past grievances with one another. Respectful language should always be used with discussions aimed at reaching resolution. Actively listen to the viewpoint of the other parent and acknowledge their concerns with reasoning for your differing viewpoint.
Utilise Mediation
Mediation can be a highly effective tool in resolving custody disputes amicably. A neutral mediator can help facilitate discussions, identify common ground, and guide parents toward a mutually acceptable agreement. If negotiations are not progressing it is a good option to resort to mediation for an independent person to view the matter and assist parents to fair and just child custody arrangements.
Compromise
Flexibility and willingness to compromise are essential in reaching a custody agreement. Understand that both parents may need to make concessions to arrive at a solution that serves the best interests of the child.
Formalising Child Custody
There are three options to formalise child custody arrangements – parenting plan, consent orders and court orders.
Parenting Plan
A parenting plan is a written agreement between the parents that encompasses the child custody and care arrangements for the child. A parenting plan can detail for the parents to jointly decided upon long-term issues of the child, the time the child spends with each parent daily and for special events/occasions and each parent’s communication with the child.
While a parenting plan will clearly outline each parent's responsibilities and expectations in relation to the child, a parenting plan is not binding on the parties, rather it is a promise from each parent to the other. There are no repercussions available if one parent does not adhere to the parenting plan.
Consent Orders
Similar to parenting plans, consent orders also outline each parent's responsibilities and expectations in relation to the child and details the care arrangements of the child. However, unlike parenting plans, consent orders are binding on all parties and there are consequences if one party does not adhere to the orders.
Consent orders can be applied for without initiating court proceedings or needing to go to Court. Simply parents can jointly file an application for consent orders and minute of order that details the child custody and care arrangements for the child. The Court will consider the proposed arrangements and ensure that it is in the best interests of the child. Upon that, the Court will make final orders that are effective from the date they are made.
Court Orders
Court orders are any orders made by the Federal Circuit and Family Court of Australia during a matter. Theses orders can be interim or final and once made are binding on the parties to be complied with.
Court orders will be made throughout the duration of the court process until such time as the parties are able to mutually agree to the child custody and care arrangements of the child or upon a final order being made by the Court.
Conclusion
Navigating child custody disputes can be complex as well as financially and emotionally draining. Child custody disputes require careful consideration, effective communication, and a focus on the best interests of the child. By understanding the legal process, prioritising the child's welfare, exploring various custody arrangements, and employing effective communication and negotiation strategies, parents can work towards achieving the best possible outcome for their family. Consulting with an experienced family lawyer can provide valuable guidance and ensure that your rights and your child's best interests are protected throughout the process.
For expert guidance on child custody matters or any family law issues, contact Alexandra Coyle by clicking here to discuss your situation. Alternatively, you can click here to get started independently on detailing your child custody matters.