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How Do Judges Make a Child Custody Decision?

Family court judges face enormous challenges when making a child custody decision, there are a significant number of factors that need to be considered, writes the TGB family law team. 


The following is a scenario that we often see played out before the Family Law Courts.

Mum and Dad have young children.  Dad is the breadwinner and Mum is the primary carer for the children. The relationship ends badly, Dad leaves and Mum subsequently ceases Dad’s time with the kids altogether or imposes strict conditions on Dad’s time, such as supervision.

Given that there are no court orders in place, Dad is left with no option but to issue court proceedings if he wants to alter the arrangements dictated to him by Mum.

Dad files material with the Court stating that he is a loving father with a close bond with the children. Mum files material stating that Dad is a risk to the children for X, Y, Z reasons and cites genuine concern for the children’s wellbeing.

The Court is then left with the difficult task of making short term care arrangements for the children while the lengthy Court process is seen through.

This decision is made before the Judge has an opportunity to hear from either Mum or Dad or to consider any evidence other than what is in their initial court documents. That is because a Trial (the formal examination of the evidence by the Judge) only takes place at the very end of the court process, and usually occurs months and months (and in some cases even years) after the process has been initiated.

The result is that more often than not, a Judge will err on the side of caution by giving the father very limited time with the children in the interim, often subject to strict conditions such as supervision.

Fathers who are on the receiving end of these short term decisions understandably feel aggrieved and distressed. You might not blame them for feeling that the system is unfair, and we often hear fathers speak of the infringements on their ‘rights’ as a parent.

Indeed, it may be the case that there is an element of ‘unfairness’ to the situation. The father may have been a perfectly loving and doting parent all along who was never a risk to his children and who was completely undeserving of having his time with his children restricted. He may be completely exonerated at the Trial stage and therefore may be left feeling that he has been wrongfully robbed of time with his children for months. The father may have been unfortunate enough to have been on the receiving end of a campaign by Mum to limit his time with the children for her own reasons (a situation very much distinct from when Mum has legitimate fears or concerns).

Any Dad who has been in this situation would understandably feel angry, frustrated and prejudiced. He may feel that the system is biased towards men, that Dad’s don’t get a ‘fair go’.

But I would like you to take a moment to consider the alternative.

Say the Judge doesn’t take a conservative approach. Say, the Judge instead decides to take a risk and refuses to impose restrictions on Dad’s time with the children, despite allegations of abuse, neglect or violence being made by the mother.

Say, the Judge gets it wrong.

The impact of a wrong decision by a Judge in this situation can be devastating.

In recent months and years we have seen horrifying cases where fathers have inexplicably harmed and even murdered their children.

Sadly, these cases are not as rare of an occurrence as we would hope.

Yes – these cases are extreme.  Yes –in many cases the father is actually a loving and capable parent who poses no threat at all to the child.

The point that I make is that, if the Court makes the wrong decision the end result can be far, far worse than being ‘unfair’.

It can be downright catastrophic.

Given that there is no real way for the Court to conclusively determine which parents pose a genuine risk to children as opposed to those who have wrongfully been on the end of baseless allegations, I would invite you all to consider whether you would be inclined to depart from a conservative approach if you were in the Judge’s shoes.

Parental rights are undoubtedly important, but children’s rights need to remain paramount.

So, if you’re a parent involved in an acrimonious dispute, what should you do? 

– Seek legal advice and guidance as early as possible.

– Keep detailed records of any incidents of relevance and retain copies of all communications between yourself and your former spouse. These may need to be referred to or used later if proceedings are necessary.

– Refrain from engaging in any written or verbal communications with your former spouse that you would not be comfortable with a Judge reading or hearing.

– Do not discuss anything pertaining to the matter on Facebook or any other form of social media.

– Consider whether it would be wise to have a third party present when dealing with your former spouse, particularly if you are concerned about false allegations being made against you.

To make an appointment with a family law expert contact your nearest TGB office.

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