Parenting plans, formerly known as child custody agreements, are complex and emotional matters that require careful consideration and legal guidance from the beginning.
Laws in Australia exist to ensure the best interest of the child is the centre point of all custody arrangements. It firstly seeks to protect the child from physical and psychological harm, but also believes children have the right to know and be cared for by both parents, regardless of their marital status. This means having the right to spend time and communicate with parents and other significant family members, such as grandparents and cousins.
To achieve this, a parenting plan, formerly known as a child custody agreement, is decided based on several factors as detailed in this blog. Parents facing a custody dispute should seek experienced legal advice to help them navigate the process and achieve the best possible outcome for their child.
Types of Parenting Plans
In Australia, it is the assumption that there will be Equal Shared Parental Responsibility so that the child can have a meaningful relationship with both parents. This involves the child sharing roughly equal amounts of time with each parent and entitles both parents to equal decision-making rights. This means that both parties should be consulted when making important decisions, including those based around schooling, religion or medical treatment if needed.
Although this is typically the ideal arrangement, if there is sufficient evidence that suggests this type of parenting plan is not in the best interests of the child, a sole custody arrangement may be implemented by the court. This means one parent is primarily responsible for the child in a physical and decision-making sense.
Factors Considered in Custody Decisions
The court’s most important considerations are to protect the child from physical and psychological harm and for the child to have a meaningful relationship with both parents. However, if there is a conflict in these two considerations, it will also go on to consider the following:
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- The child’s age, gender, and developmental needs
- The nature of the relationship between the child, each parent and other significant people, such as siblings and grandparents
- The ability of each parent to provide for the child’s physical, emotional, social, mental and educational needs
- The child’s current living arrangements and the potential impact of a change in those arrangements
- Each parent’s history in involvement and decision making in the child’s life
- The child’s wishes, if the child is old enough or want to express a preference
- The child’s right ability to enjoy and celebrate their culture, and each parent’s ability to facilitate it
- Any history of family violence or child abuse
The court can also consider any other factors it deems important on a case-by-case basis, including each parent’s views of parenthood and the nature of the separation.
Legal Options Available to Parents
There are several legal options available to parents when seeking custody of their child. The first step is often to seek mediation, whereby a neutral third party helps parents to reach an agreement on custody arrangements. Mediation can be an effective way to avoid the stress and expense of a court hearing, and it can also help parents to maintain a positive relationship with each other for the benefit of the child. Legal advice and representation should still be sought at mediation to ensure the agreement is legally binding for both parents and minimises conflict in the future.
If mediation is not successful, parents can apply to the court for a custody order. The court will consider the factors listed above when deciding and will also consider any evidence provided by the parents. It is important to note that the court’s decision will be based on what is in the best interests of the child, rather than what the parents may want or prefer.
Changing a Parenting Plan
Parents who are unhappy with a custody order can also seek to have it changed, either by agreement with the other parent or by applying to the court for a variation. This may be necessary if there is a significant change in circumstances, such as a parent relocating or a child’s needs changing.
Do I really need a lawyer?
The short answer is yes. Decisions made in the Family Court are difficult to appeal, therefore having an expert family lawyer in your corner from the beginning is vital. Even if you do not proceed to the Family Court and a decision is reached at meditation, a lawyer needs to be present to make the documentation of the agreement legally binding. This is important in case one parent tries to appeal the agreement in future.
