As mandated by the Family Law Act of 1975, it should be in the interest of both parents, whether married, separated or in a de facto relationship, to form a meaningful relationship with their minor child or children. They have a shared parental responsibility, which means parents have all the duties, power and authority with their children. Shared responsibility, however, is not the same as equal time spent by the parents with their children. By this definition, the legal obligations and duties of the parents are the following:
- Deciding the children’s rearing, religion and schooling
- Consent for the children’s adoption
- Applying for the children’s visa or passports
- Enforcing accepted disciplinary measures for the children
- Authorising legal proceedings on behalf of the children.
Nevertheless, one or both parents may argue in court which of them has child custody when they file for divorce. It is a practice under Australian law that the legal and physical custody of the children be resolved first before the legal proceedings of the parents’ divorce can be completed.
Furthermore, it’s important to note that the Court, acting under the mandates of the Family Law Act, will always decide what is in the children’s best interest. Suppose the parents cannot reach an amicable arrangement regarding the shared responsibility of the children. In that case, both parents are expected to resolve disputes by compromise, discussions and dispute resolution with the assistance of the Federal Circuit and Family Court of Australia (FCFCA). This move is mandatory before the Court hands down parenting orders. If no child custody arrangements are agreed upon, then a Court hearing will proceed.
At Madison Marcus, our child custody lawyers are well versed in issues arising from divorce and child custody proceedings. Read through this article to understand all the essential discussions under the Family Law Act.
What Is Legal Custody?
Legal custody, in law terms, has a different meaning from physical custody. Parents having legal custody means they can make any minor or major decisions in their children’s lives, such as education, religion and counselling.
If possible, the Court can always decide that both parents have joint legal custody of their children. This is to ensure that both parents fulfil their shared responsibilities even when they’re separated or divorced.
In most cases, however, one parent may act as the primary caregiver making most of the decisions for the child. The other parent still has a legal right to participate in the decision-making. However, it is up to them both to make the arrangement work.
What Is Physical Custody?
On the other hand, physical custody refers to which home the child or children would stay in on a day-to-day basis. Ideally, the Court would want to decide joint physical custody of the children. This means that the parents can be both engaged in raising the child in two separate homes, provided they’re reasonably close to each other. Or the parents can decide the time split of how long the children can stay with one parent before transferring to the other parent’s home.
This setup, however, can lead to multiple opportunities for conflicts between the parents, especially if they don’t go along well in the first place. In this case, the Court can grant sole parenting responsibility to one parent, provided that this is in the child’s best interest.
What Is Temporary Child Custody?
A Temporary Child Custody Order (TCO) is an interim order made by the Magistrate if the child is deemed in harm’s way or a parent is not deemed fit to carry out parental responsibilities. The Child Safety Services can carry out the order and proceed to take guardianship of the child or children for three business days.
This parenting order can be made in urgent circumstances and usually won’t require a court hearing. If the TCO is granted, the affected parent can file for an appeal or ask for legal assistance from a child custody lawyer.
Who Gets Custody of a Child in Divorce in Australia?
There is no one answer to this question as family circumstances and situations may vary. The Court decides who gets custody of a child during divorce.
Whoever may be granted sole parenting responsibility does not mean that that parent can decide on all important matters concerning the children. Depending on the terms and agreements discussed during Court proceedings, the non-custodial parent can still act or decide on some parental responsibilities.
Child Custody Schedules by Age in Australia
Child custody schedules are usually not fixed and may vary among families. Considering several factors before reaching a final agreement works for both parents. It’s important to remember that any agreement between parents always prioritises what’s best for the children.
To best plan for this arrangement, both parents should detail a concrete schedule that includes but is not limited to the following:
- When the parents can see the child
- How much time each parent spends with the child
- Where the child will live
- What to do when changeovers occur
Both parents’ presence at each child’s life stage, whether custodial or non-custodial, should also be taken into account. For example, babies should constantly be in contact with both parents. The child may live with one parent and would frequently be visited by the other parent.
As the child grows up, arrangements between the two parents may differ; however, work hours, distance and time should be worked around to ensure parental responsibilities are met from both sides.
How To Get Full Custody of a Child in Australia
The Court rarely grants full sole custody of a child to a parent in Australia. It’s important to note that sole custody isn’t presently used as a legal term under the Family Law Act. Particular circumstances, however, may grant Court favour to one parent, providing all parental decisions for the children.
It cannot be stressed enough that the Court will always factor in the children’s best interests, especially if abuse or violence is involved. Granted, the responsible parent should provide a full report of their claims against the other parent. These claims include police reports, reliable witness statements, psychological reports and other relevant evidence.
How Madison Marcus Can Help You
Child custody issues are complicated due to the complexities and the different circumstances each family may encounter. However, there are many options for divorced parents to reach an amicable agreement without having to proceed to court hearings.
Did this article help explain the ins and outs of child custody and divorce? For clarifications and questions on Family Law cases, contact us at Madison Marcus. We can provide a comprehensive consultation plan for your legal needs.