Q and A: Child Custody After Divorce

TGB Family and Divorce lawyer and Accredited Family Law Specialist Jane Miller answers key questions about child custody after divorce and separation.

I have just split with my partner, what should happen with my children?

Where possible you should maintain open lines of communication with the other parent to develop a living arrangement for your children that meets their needs best. It might be appropriate to seek assistance from a mediator or counsellor to develop a plan.

However, open communication between the parents is not always feasible. Sometimes there are allegations of violence, neglect or a significant amount of animosity between the separating couple. In those situations, each party should seek legal advice to find out what a Court would be likely to implement and also see if an agreement can be negotiated. For example, the lawyer might write to the other party with a proposal that could recommend mediation or in more urgent circumstances the need to take the matter to Court.

What if an amicable agreement has already been reached?

It is important to formalise the agreement, either through a parenting plan or a consent order which can be lodged to the Court. This provides security and certainty, ensuring that the agreement will remain in place. It is also enforceable, which means that if a parent breaches the agreed terms they could find themselves in hot water and back in Court.

Once the binding agreement is formalised, it stays in place until the children are adults. However, if circumstances change down the track, parents can ask the Court to make changes to the order. You will need to satisfy the Court that something significant has changed, such as a development in the children’s lives or the agreement no longer satisfies their wishes. Sometimes this occurs as the child gets older. Both parties can also negotiate for the agreement to be amended if they believe that it no longer meets their children’s needs.

For these reasons, your lawyer should recommend anticipating future changes to a child’s needs as they grow older and build that into the agreement.

Do parents get equal time with their child?

In 2006 the law changed, giving more emphasis on children having equal time with both of their parents. At the end of the day it depends on the individual child and their best interests.

Depending on the child’s age, their relationship with each parent and the parent’s ability to care for the child, then shared care on a week about basis is an option. But for many families, this is not an easy arrangement to make work because there is sometimes animosity, each parent may not have the same capacity to care for the child and some children don’t cope well with being away from their primary care giver for long periods. So for young children and older teenagers, this arrangement is not usually popular. We’re seeing this arrangement less and less.

Rather than shared care, a typical arrangement now sees the child living with one parent but spending alternate weekends, some weekdays, school holidays and special occasions with the other parent.

There is no standard child custody agreement, because ultimately it depends on the individuals and family circumstances. Children also have different needs depending on their age. Many factors need to be considered.

Does the child get to choose who to live with?

The Family Law Act says the court must consider many factors when deciding what is in the best interest of the child. The child’s wishes and views are one of the considerations, but the court isn’t obliged to make its decision based on that. It depends on the child’s age, maturity, comprehension of the situation and whether the child’s wishes are their own or influenced by one of their parents.

There’s no set age as to when a child can freely make a choice. Some children are assessed by a psychologist, who listens to their wishes and measures that against their maturity. This process is called a family assessment report.

Who are the “guardians” of the children?

The law no longer talks about “guardianship” but rather “parental responsibility”. In most cases, both parents will continue to have responsibility for the child which means they can both be involved in major long term decisions such as education, major medical decisions, overseas travel or religious instruction.

In some cases, it is not appropriate for both to be involved and one parent is given sole parental responsibility. This is relevant to cases of abuse and neglect, where there has been a breakdown in the relationship between the parent and the child or where there is so much animosity between both parents that they will never be able to agree on life decisions for the child.

What if a parent doesn’t comply with the child custody order?

Once an order from the courts is in place, it is important to follow the terms of the order. If a parent chooses not to, there can be consequences.

Sometimes parents don’t want to comply with the order because the child’s wishes have changed or a situation has occurred and a parent may have a concern about the child’s safety.

In any event, parents should always seek legal advice before not complying with the order because while they don’t want to put the child in harm’s way, they should be aware that a breach could see the matter brought back to court.

What about other issues relating to separation and children?

We handle many matters that extend beyond where a child will live after divorce. Disputes about what a child’s surname will be following separation is common. Often the wife will return to her maiden name, so we look at what surname the child resonates with the most and hyphenating the name is also an option.

Sometimes there is also litigation about what school or kindy a child should go to and whether a passport should be issued for a child to travel overseas. We are faced with many legal issues relating to children.

TGB is South Australia’s largest family law firm. To arrange an appointment, contact your nearest TGB office.