How do I get custody of my children? Does Mum or Dad have more say?
Most parents usually speak about child custody, sole custody, joint custody, access and visitation. These terms were used pre-2007, but are not used in family law anymore.
Though somewhat cumbersome in sentences, family law now uses the terms lives with and spends time with in relation to children’s living arrangements.
Philosophically, the change in linguistics shows a shift in perspective – from the child being an object that a parent could have custody or possession of, to the child’s experience being the central consideration.
Rights
You won’t find a single reference to parent’s rights, father’s rights or mother’s rights in the Family Law Act. Instead, children have rights. Parents have responsibilities and obligations.
Under the Family Law Act:
- Your child has the right to know and be cared for by both parents, regardless of whether you are living together or not.
- Your child has the right to spend regular time and have regular communication with both parents.
- Your child has the right to enjoy his or her culture.
Decision-making
There is a presumption that both parents have equal shared parental responsibility for decisions concerning the major long term issues for their children, including where the children live, where they go to school, their religious upbringing, medical treatment, and changes to their name.
In the absence of any domestic violence or child abuse, this presumption will apply.
This means that decisions about major long term issues are to be made jointly by mum and dad in consultation with each other – dad can’t choose a school and announce to mum that this is how it’s going to be; mum can’t change the child’s last name without dad’s agreement; neither parent can move the children far away from where the other parent lives.
Living arrangements
Equal shared parental responsibility does not mean equal time.
There is no legal presumption that children are better off living with mum than with dad, and the child’s best interests remain the paramount consideration.
The shared parenting laws acknowledge that it is usually in a child’s best interests for both parents to having a meaningful involvement in the child’s lives. This meaningful involvement is usually promoted and maintained by regular time and communication.
If the presumption for equal shared parental responsibility applies, then the court must consider whether it is in your child’s best interests and is reasonably practicable to spend equal time with each parent. If the answer to either these questions is “no”, the court must then consider if it is in your child’s best interests and is reasonably practicable to spend substantial and significant time with each parent.
Substantial and significant time includes time during the week, on weekends, in school holidays and on special occasions. Substantial and significant time is usually something less than equal time, but not much less. If equal time is 7 nights with mum and 7 nights with dad in a fortnight, then substantial and significant time is usually somewhere between 8 and 6 to 10 and 4.
Of course, every family is different, and different arrangements may be considered to be in your children’s best interests based on your particular circumstances.
Justine Dean – Samford Family Law