One of the most common points of tension in family law is child custody. Arrangements for your children can be made by agreement or court order. Our child custody lawyers can guide you through your parenting and custody dispute to help protect the best interests of your children.
When can I apply for a parenting Order?
Before commencing proceedings in Court for a parenting Order, parties are required to attend family dispute resolution with an accredited family dispute resolution provider.
The process of family dispute resolution allows you and your ex-partner to negotiate a careful arrangement for your children following separation. Your child custody rights is therefore very important.
However, not all matters are appropriate for family dispute resolution and there are exemptions available to some parties to commence proceedings without first attending family dispute resolution.
How can I document an arrangement for my children?
Parenting arrangements can be documented by way of:
1. Parenting Plan;
2. Consent Orders.
A Parenting Plan is an agreement between the parties which is not approved by the Court. It is not enforceable, however, it sets out a plan for the children’s arrangements.
A Consent Order on the other hand, is approved by the Court and is enforceable. A Consent Order remains valid until the children turn eighteen (18).
The Court’s power to make a parenting Order and to also have regard to a parenting plan is quite wide and independent legal advice should be sought from Matthews Folbigg specialist family lawyers about this.
What is a parenting Order?
A parenting Order is an Order which sets out issues such as:
1. Where a child is to live;
2. How much time a child is to spend with a non-resident parent;
3. When and how a child is to communicate with their parents;
4. Who is to have and how parental responsibility is to be allocated between the parents.
A parenting Order can be applied for by parents, a child and any other person concerned with the children such as grandparents.
Seeking custody advice is therefore very important.
What can I do if I have a parenting Order and my child has not been returned to me?
In circumstances where one parent has retained a child contrary to the terms of a parenting Order, a party may file an application to retrieve the child from the other parent. This is known as a recovery application.
In other circumstances, a party may file a Contravention Application if they are of the belief that a party to the Order has contravened the terms of the Order.
What can I do if my ex-partner has taken my child overseas?
Depending on the location of the child, a treaty known as The Hague Convention (of which Australia is a party to) becomes relevant. Briefly, if a child has been removed or retained in a country which is a party to the Convention, an application can be made to the Court for that child to be returned.
The issues surrounding a Hague Convention matter are very complex and requires expert attention by our divorce lawyers.
How does a Court determine what parenting Order to make for my child?
In determining what Order to make for a child, whether it be equal time or substantial and significant time, the Court must have regard to:
1. The best interests of the children;
2. What is reasonably practicable in the circumstances.
The following are some of the factors the Court takes into account in determining the above two elements:
1. Any wishes expressed by the child;
2. The capacity of each parent to care for the child;
3. The relationship that the child has with each of the parents;
4. The cultural factors of the child;
5. The parties capacity to communicate with each other;
6. The proximity of where each party lives.
How can we help you?
Reaching a settlement in relation to parenting issues can be complex and stressful.
Matthews Folbigg divorce lawyers specialise in parenting settlements for both married and de facto couples. We are well equipped to give custody advice.
We have a team of solicitors including accredited specialists in family law who may provide succinct legal advice to you in a cost efficient manner.
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