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Child Custody

The law abolished the concept of ‘child custody’ and does not make any distinction between the rights of fathers and mothers. Instead, the ‘best interests’ or welfare of the child is the paramount consideration that the Court takes into account in determining ‘child custody’, that is who the child with live with and spend time with.

While the law does not guarantee an equal-shared parenting arrangement in every matter, both parents have the responsibility for the care of their children. If the Court decides that an equal-shared parenting arrangement is not in the best interests of the child, the Court must consider ordering significant or substantial time to the non-resident parent.

The question of how much time a child should spend with both parents is determined by what is in the ‘best interests’ of the child. This is achieved by having regard to the two ‘Primary Considerations’, that is:

  • Whether there is any benefit to the child having a meaningful relationship with both parents; and
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Child Custody Laws and Child Custody Rights – Where do I start?

Separation is often a stressful time for both parties. Alongside dealing with your own emotions during a particularly difficult time, parties with children have to make arrangements for the care of the child or children, as the case may be. Child custody, as it often referred to, concerns the resolution of parenting arrangements for children. This involves reaching agreement about with which parent the children will live with and the time that they will spend with the other parent during the school terms. It often extends to agreements about school holidays and special occasions throughout the year such as Christmas, Easter and Birthdays.

Considerations to keep in mind when negotiating an agreement about child custody:

  1. Separation is stressful on children too and each child may react in different ways to separation or divorce. The child’s age, maturity, personality and characteristics are some factors that will no doubt determine their reaction.
  2. It is important to remember that cooperation of the parties, particularly in the presence and hearing of the children, can be beneficial to the child’s reaction.
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Child Custody & Child Custody Laws

Child Custody Laws and Child Custody Rights are terms often used when parents seek advice in relation to parenting disputes. When parties make competing parenting applications, the Court is required to consider what is in the best interests of the child.

Children’s Rights

Child Custody Rights relate to the rights of the subject child, not the parents.

The rights of a child can be summarised into two primary considerations:

  1. The child’s right to have a meaningful relationship with both parents; and
  2. The child’s right to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

If the primary considerations conflict then the need to protect the child prevails.

The best interests’ principle is the overarching and paramount consideration in all parenting matters. Primary considerations, together with an extensive and broad list of additional considerations are matters that the Court will take into account when determining what is in the child’s best interest. An experienced family lawyer can advise you on which considerations are relevant to your circumstance.

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Child Custody Laws Advice

Isn’t 50/50 care my right under child custody laws?

With the emphasis on both parents being more involved in the care of children after separation many people assume that parenting law now guarantees a shared care or 50/50 split of the child’s time with each parent.

While the overriding principle since the Family Law Act commenced in 1975 is that all parenting arrangements should be made ‘in the best interests of the child’ a series of changes to family law since 1996 has seen a steady move from the notion of ‘parents child custody rights’ to an approach which prioritises the rights of children.

Section 60CC of the Act focuses on the importance of children being safe from harm and having a ‘meaningful relationship with each parent’. Family law also encourages parents to work together (where it is safe to do so) and negotiate care arrangements which best suit their children and their individual circumstances. The old notion of child custody ‘rights’ gives way to a more responsive outcome.
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Why you should speak to family law lawyers about travelling overseas with children after separation

Before you put down the non-refundable deposit on your dream overseas holiday, it is best to check with family law lawyers whether you may need your former partner’s consent to take your children. While it is common for Orders to include mention about who holds the passports, how they are to be renewed and what is permissible overseas travels, they are not compulsory. This may mean you will need to seek the consent of your former partner to take your child overseas. You may also need to seek their consent in applying for or renewing your child’s passport.

Renewing or applying for a passport

If your Orders are silent on getting your children a passport or ensuring they remain valid, you will need to obtain the consent of your former partner in getting a passport. This will require you to complete a passport application or renewal application which shows the consent (generally the signature) of both parents. If your former partner refuses to sign the application, you may still able to apply for a passport.

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