How to Get Custody of Your Child

Obtaining custody of your child can be easy if both parents are co-operative, but it’s not always that easy. Sometimes the reasons are justified as to why separated parents have difficulty reaching agreement. At other times, 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 how to get a custody agreement through either path. 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.

There can be many reasons why parents disagree and getting yourself informed with professional legal advice will often help you through the dispute faster.

We can help advise you on what to expect from the process and represent you in court proceedings if necessary, to obtain parenting orders.

Family Law Principles in Parenting matters

All lawyers and professionals advising families on how to get custody of a child should apply the following legal principles.

Best interests of the child

A main 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 prompts both parents to ask: “what would be the best outcome for the child in the circumstances both now and in the future?”

This is certainly what a court will ask. It can be harder for parents, but usually one, or both parents, need to adjust their expectations. If the matter is decided by a court they will usually take their own considered view as to what is in the child’s best interests.

Equal shared parental responsibility

There is 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 (e.g. 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, as there is 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 a parenting plan together, they 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, you are given a certificate confirming you have attended mediation.

This will allow you to proceed with 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 you will want 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, 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
• 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 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

You might be wondering how to get custody of a child on your own. Where there are concerns for the welfare or neglect of a child, a parent may seek sole custody. This is often the case where there has been family violence or domestic abuse against a family member, or when the living arrangements are not suitable for a child. Our family lawyers 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 usually attends a psychologist and a family 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, other family members and others who are considered to be important to the child.

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

How PCL Lawyers Can Help

Our child custody lawyers can provide specific expert legal advice on how to get custody of your child. 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.