How to get custody of your child

Obtaining custody of your child can be easy of both parents are co-operative but, it is not always that easy. Sometimes the reasons are justified as to why separated parents have difficulty reaching agreement. At other times, which is often the case, one of the parties has unrealistic expectations that are different from what the law will allow.

Child custody arrangements are either agreed to or disputed. If the dispute is not resolved, litigation is a common consequence. If the matter has to go to court, the good news is that most cases resolve prior to trial.

A child custody lawyer will advise you on either path you choose. If court proceedings are required, the case will be heard in either the Family Court or Federal Circuit Court. Both courts perform similar functions and have processes in place for parents to agree before going to court. Joint parenting is more common-place and many people will be able to reach an amicable agreement on their parenting arrangements and some may not for a wide variety of reasons.

We can help advise you from simply what to expect from the process through to representing you in court to obtain parenting orders.

Family Law Principles in Parenting matters

All lawyers and professionals advising families in child custody matters must adopt the following principles.

Best interests of the child

The principle at the heart of child custody matters is “what is in the best interests of the child”. This excludes the interests of the parents and focusses both parents to ask: “what would be the best outcome for the child in the circumstances”.

This is certainly what a court will ask and sometimes that means that one or both parents need to adjust their expectations to be in the childrens’ best interest first.

Equal shared parental responsibility

There is also the presumption that both parents have equal shared parental responsibility to care for the child. What this means is that both parents are able to make decisions about the welfare of a child, including such matters as education (eg., what school the child should attend), medical decisions and other significant matters that have long term consequences.

Parenting Plans

Where both parties can agree, their parenting agreements can be consolidated into a parenting plan. A parenting plan takes into account such matters as prescribing with whom the child will spend time, including how the pick-ups and drops-off will take place and how special days such as birthdays and seasonal holidays will work in practice.

This is an informal agreement so it can be short or long depending on what issues you want covered. You can redo parenting plans when circumstances change over the life of your child/ren. Given that there is an no obligation to stay bound to a parenting plan.

Long term arrangements can be hard to work out with young children so you may set a time in the future to revise the parenting plan. Likewise, if your custody arrangements become too difficult to manage, you may change the parenting plan to suit.

If you can agree and want your agreement formalised to be made legally binding and enforceable you can apply for a consent order.

If both parties can’t agree on parenting plan together have will need to attend mediation.

Mediation

This step is where both parties attempt to reach an agreement through mediation. At this stage you will also work towards making a parenting plan. If you can’t agree on what the terms are then you are given a certificate confirming you have attended mediation.

This will allow you to proceed with the making an application to the Family Court of Australia.

Going to Court

Obtaining Consent Orders

If you have reached an agreement you may want to obtain consent orders to make it legally binding.

We can assist you with the process of obtaining parenting consent orders from the court.

Obtaining Judgment and court orders

Going to court is more complex as more information is prepared so that a judge can make a decision and a child custody court order. This process will involve preparation of statements and financial records. A comprehensive case, well-presented, will have the best chance of success in court and give you the best chance of getting your desired outcome.

Our family lawyers can prepare the application or defend a claim brought against you. You may also seek interim orders from the court for your child custody arrangements.

The court orders will be final and difficult to amend so it is best to have the best representation you can have if making or defending a claim.

The orders will cover all aspects for the care of the child/ren including:

  • Who the child will live with;
  • How much time with each parent;
  • Who the child will spend time with;
  • Who has parental responsibility;
  • How major decisions are made for the child;
  • How decisions on Education and other activities are made;
  • financial child support arrangements; and
  • who the child can communicate with.

A court order can become quite specific on the contested topics. Once the order is given it is finalised and it is also legally binding and can be enforced if needed. This makes it easier for law enforcement and other agencies to act.

Getting Sole custody of a child

Where there are concerns for the welfare or neglect of a child a parent may seek child custody. This is often the case where there has been family violence or domestic abuse against a family member.

It can also be where the living arrangements are not suitable for a child. Our family lawyer’s will be able to advise you on your options both legally and practically to improve your chances of success in sole custody disputes.

If there is a family violence order in place you should contact a lawyer to help with legal advice on your options.

What if my child does not want to live with my ex-partner?

Child custody matters can be difficult for children. This is the main reason for breaches of parenting orders. If an order is made you should encourage your child and comply with the order.

During the court process there will be a children’s lawyer who acts independently for the child. The child/ren usually attend a psychologist and a report is prepared. Their wishes are considered to some degree via this process. Once a child is 18 years of age they can make these decisions for themselves.

The only other option is to seek an amendment to the court order in place to change who the child lives with.

Grandparents Rights (and other family members)

Child custody can be obtained for grandparents and other family members and others who are considered to be important to the child.

The process outlined above for obtaining custody of child is very similar for grandparents and others when they are no longer able to see a grandchild or relative.

How we can help

Our child custody lawyers can provide specific expert legal advice on your child custody matter. We can provide clear, concise advice so that you understand your legal position and can make informed decisions on your family’s future.

We understand the importance and impacts of child custody disputes and work hard for our clients to bring about their desired outcome. Through careful consideration and case preparation we have had great success in helping our clients in difficult situations.

Contact a family lawyer today to discuss your child custody matter on 1300 907 335 or complete an online enquiry form and we will respond promptly.

All enquiries are confidential.

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