How is Custody of Children Decided?

Equal shared parental responsibility (which is a presumption that the Court will make unless rebutted in cases of family violence or child abuse) means that both parents have equal say in long term matters relating to their child. An example of such a matter would be a decision on the child’s schooling/education.

A common misconception however, is that this presumption includes the right for both parents to spend equal time with the child.

When considering whether a child should spend equal time with both parents, the Court will make the equal shared care presumptions,  if not rebutted, and then judge each case based on the best interests of the child and reasonable practicality of equal shared care for the parties.

A non-exhaustive list of factors which the Court might take into account include:

• The parenting capacity of each parent and the nature of the relationship between parent and child
• Whether there has been family violence or there is a family violence order
• The physical proximity of both households
• Whether there is a consensus between both parents on day to day life matters of the child: e.g. Diet, health care etc.
• If there is a disagreement on the above, the probability that the parents can reach an adequate compromise
• The opinions and wishes of the child in relation to equal parenting arrangements, and the reasons behind them

If after considering factors such as the above, the Court finds equal parent arrangements impractical, the Court may then examine where it is the best interests of the child for one parent to have residential care and another to spend substantial and significant time with the child. In these situations, family dispute resolution can help to mediate and manage conflicts. Whilst not an equal parenting scheme, such an arrangement will ensure both parents having a real involvement in the everyday life of the child.

• Parties can agree to an arrangement for the care of children of their union either verbally or in writing. There is no fixed and inflexible rule about the care arrangements
• If parents of children wish to, they can put their agreement relating to the care of their children into writing by way of a parenting plan or consent orders filed in the Family Court
• We can help formalise your arrangement by engrossing an Application and consent orders
• If parties cannot agree upon a suitable arrangement, we can write to the other party

For more information about what are the rules about child custody and access, make sure to check our latest article addressing this topic. In addition, if you would like to learn more about the costs associated with a family lawyer, check our this blog.

If you would like to speak to a child custody lawyer in Melbourne, contact us today.