After parents separate, the next step is to sort out a parenting arrangement for the children. Who will the children live with? How much time will they spend with the other parent? Sometimes these child custody arrangements are sorted out between the parents relatively casually and smoothly. In other circumstances, more extensive negotiation will be required, or even a hearing in Court. Our child custody lawyers regularly assist parents in making long term parenting arrangements in the best interests of the children.
What is a Parenting Order?
A parenting order is an official document containing a list of orders made by a court about parenting arrangements for a child. A parenting order can be made in a number of ways. If the parents agree about the terms of the parenting arrangement, they can ask a Court to make parenting orders in line with their agreement. These are called Consent Orders. If there is no agreement between the parents, the Court will make parenting orders after a hearing or trial.
Parenting orders are enforceable. This means that each person named in the orders must follow the orders.
As a starting point, parenting orders cover the following issues:
- who the child or children will live with;
- how much time each child will spend with each parent;
- whether parental responsibility is shared between the parties; and
- how the child or children will communicate with a parent they do not live with.
Once the basics of the orders have been nutted out, they can also include any other aspect of the care, welfare or development of the children.
Parenting Orders are not the only way to define parenting arrangements. You may also enter into a Parenting Plan. Parenting plans benefit families when the parents can come to their own agreement, and spare the children from the effect of parents in conflict over court cases.
A parenting plan is a written agreement between the parents about the care of the children. The agreement must be signed and dated. Unlike parenting orders, a parenting plan is not legally enforceable. However, making a parenting plan is less expensive and less stressful than going to court for a parenting order.
To help you come up with a parenting plan, there are family support services that work in conjunction with lawyers, to offer informal dispute resolution. If the parenting plan goes well, then the agreement can be used to apply for Consent Orders from the Court. This will require an application to the Court, however you will not need to attend Court.
Does a Mother have custody rights of her children?
Arriving at parenting arrangements should always be driven by the best interests of the child or children in question. This means that in deciding where the child will live, where they will go to school, how much time they spend with each parent, the answer must involve a scenario that delivers the best outcome for the child.
Given the current language used in the media, a parent would be forgiven for mistakenly assuming that parenting cases consider the “right” of a parent. However, this does not mean that the concerns of a parent go unrecognised. Once you understand how the best interests of a child are determined, you will see how the law seeks to recognise and alleviate a parent’s concerns.
Outside of the scope of the law, the importance of the role of the mother in nurturing infant children has been researched and confirmed many times. The role of the mother is biologically unique. However, in determining who the child will live with, the biological role of the mother is one factor among many. Ultimately, it is a balancing act designed to come to a solution that reflects the child’s best interests.
How are custody arrangements determined?
If you believe that the children should live with you, you will need to show that the parenting arrangement is in the best interests of the children. The phrase “a child’s best interests” is probably the most important phrase that you will ever hear from your lawyer. Put simply, this must be the ultimate goal of any parenting order.
The central question then becomes, how can you show that your proposal is in the best interests of the children?
There are a number of factors you should think about:
- Does the arrangement ensure that each child maintains a meaningful relationship with both parents?
- Is the child protected from harm?
- Has the child expressed any views?
- What is the nature of each parent’s relationship with the child?
- What is each parent’s capacity to care for the child and participate in long term decision making for the child?
- Are there any existing family violence orders?
- Does the child have contact with extended family?
- What will be the effect on the child of a change of current arrangements?
- What is the maturity, sex, lifestyle and background (including culture and traditions) of the child?
- What is each parent’s attitude to the child and parenting?
Ultimately, the decision should rest on the balanced consideration of all of the above factors.
Can parenting orders be challenged?
If you already have parenting orders, challenging them can be difficult. Also, in the meantime, you must continue to comply with them.
As a parent, you must take all reasonable steps to ensure that the order is followed. This requires positive action. For example, if the parenting orders state that the other parent is to spend time with the children during a particular period, you should positively encourage your children to comply with the orders. This requires more than merely making sure that your children are available to spend time with the other parent.
If the existing parenting orders are not working despite your best efforts, you can re-enter negotiations with the other parent regarding the amendment of the orders. If you both agree to the changes, provided that the changes are recorded in writing, you should be able to change the effect of the orders.
The real difficulties emerge in situations where the parents do not agree about making any changes to existing parenting orders. In these circumstances, you will need to make an application to the Court asking for the parenting case to be re-opened. Over the past 40 years, the Courts have emphasised that they will not re-open cases unless it can be shown that there are changed circumstances which would justify such a serious step. The general attitude is that being able to rely on the stability arising from final parenting orders benefits both children and parents. Orders will not be overturned lightly. If a parent seeks to overturn orders then those new facts and changed circumstances should be so significant that the best interests of the child cannot be properly protected without a fresh investigation into the case.
What counts as a significant change in circumstances? There is no concrete answer to this question. Each case must depend upon its own facts. In the past, there have been decided cases which suggest that the following are examples of changed circumstances:
- The use of bad language and “dirty expressions” by a child after spending time with one parent.
- Recovery from former mental health issues and a happy re-marriage by a mother with whom the child did not live.
- Re-marriage and stabilised accommodation by a mother with whom the child did not live, together with child commencing school.
- Re-marriage allowing a parent with whom the child did not live to provide a warm family environment.
- Psychological and physical changes in children as they grow up.
Talk to our Child Custody Lawyers about your child custody issues.
Going to the effort of negotiating written parenting arrangements will provide stability for the entire family moving forward. Securing parenting orders does not necessarily mean that you will have to see the inside of a court room. We have many years of experience in helping parents formalise their parenting arrangements through negotiation and mediation, tailored to suit you.