School’s back: Implications for child custody arrangements

TGB’s Jane Miller writes about the importance of formalising custody agreements as children return to school.

Now that the school year is underway, separated parents should give special consideration to the formalities of their custody arrangements.  Even if your “split” was amicable, it’s worth taking the time to think about the following:

1. If you do not have a formalised agreement for your children’s living arrangements (sometimes called “custody”), it is recommended that you consider obtaining one.  You might have an informal agreement with your former partner that provides when your children live with each parent.  However, that informal agreement, even if it has been put in writing and signed by you, is not binding or enforceable.  This means that the other parent is not required to adhere to the agreement.  What’s worse is that your child’s school or out of school hours care provider is not required to enforce your informal agreement.  If there is no binding agreement in place, and the other parent attends at school or out of hours school care outside of the agreed times, the school or out of school hour care provider needs to release the child to the care of that parent.  This means that the other parent may make a unilateral decision to remove the child from school or out of hours school care despite this being contrary to your informal agreement.

If you have any informal agreement with the other parent it is a relatively straightforward exercise to change that agreement into a binding agreement.  This is usually done by registering with the Family Court an Application for Consent Orders with the help of a lawyer.  It does not require you or the other parent to attend at Court and is usually processed by the Court in less than four weeks.  A lawyer can assist you in the preparation of the paperwork required to make the Application for Consent Orders to the Court.  Once the Consent Order is made, both parents are required to stick to it and they face legal consequences if they fail to do so.

2. If you already have a Court Order but it has become outdated, you can undertake a similar process to obtain a fresh Consent Order to reflect your current circumstances.  Sometimes parents have a Court Order from many years ago but they no longer live by the Order.  If that is the case, it is worth considering applying to the Court to change the old Order by consent and grant a fresh Order reflecting the current circumstances.  You can then provide the updated Order to your child’s school and out of hours school care provider to ensure that the child is only released into the care of the other parent when required by the agreement.

3. If you do have a parenting order, then ensure a copy is provided to your child’s school, out of hours school care provider and to any providers of extracurricular activities that your child participates in.  This will help everyone understand when the child is to be in each parent’s care and to stop the child being incorrectly released into the care of a parent outside of the time stipulated in the Order.

In most cases custody matters can be resolved by agreement.  However, to ensure that the agreement is followed and that each organisation your child has contact with understands the terms of the agreement and can enforce it, it is important to have a valid and current parenting order.

4. Make sure your child’s school has your current contact details, especially if you have moved since the separation.  You can also ask the school to send you separate copies of school notices so that you are not reliant upon the other parent passing these on to you.  Likewise, you can request your own copies of school reports, school photographs and separate parent teacher interviews to take place without the other parent present.

TGB is South Australia’s largest family law firm. For advice about your custody agreement contact your nearest TGB location.