We answer some common questions about child custody issues and rights.
Q: My child only wants to live with me and they don’t want to see their Dad/Mum. The Court has to listen to them right?
A: This depends on the age of your children. If they are not teenagers, other considerations will probably carry more weight. If the children are older and show maturity, the Court will give more weight to their opinions. Especially as children reach the age of 15 or 16, it is difficult to force them to spend time with a parent they do not want to spend time with.
The Family Courts are very good at assessing whether an opinion is a child’s own opinion or something that their parent has talked them into saying. If you try to influence your children’s views and this becomes known, the Judge will not think much of your abilities as a parent. If there is any question about what your children really think and why, the Court may have a child expert speak to them alone, find out what they think and report back to the Court.
Q: Is the law prejudiced against fathers?
Many parents may assume the mother will automatically get more access to the children if the case goes to Court.
A: This is not true, however there are reasons why it may seem to be.
Studies have shown that young children (under the age of five or six) need the stability of living consistently with one parent – sharing that involves different evenings in different places is not necessarily in their best interests. However, it is good for children to have frequent time during the day with the other parent to maintain their relationship.
Because of the physical bond a mother has with a child when it is born, she will usually be the parent that a very young child stays with.
When they are at school age, children cope much better with time sharing between parents and more equal time-sharing arrangements might be appropriate.
It may seem unfair that one parent gets more time with younger children than the other, but don’t forget – the law prioritises children’s best interests over parents’ best interests.
Q: If a mother makes false allegations of abuse against a father, will the Courts believe her therefore he’ll be punished by denied access to his children?
A: The Family Courts are very good at assessing the difference between real and false allegations of abuse.
The Court will look at what is said by witnesses in court, as well as evidence such as police records, doctors’ and hospital records, reports from schools and from the State Government department in charge of health and welfare.
People who make up allegations of abuse are looked on very critically by the Court and it may even order you to pay some or all of the costs of the other person. Even if allegations of abuse are found to be true, that doesn't necessarily mean that the abusive parent will be prevented from seeing their children, although visits may be supervised by an independent person to make sure nothing goes wrong.
The law was changed in 2006 to give fathers the right to have equal time with their children.
The Family Law Act presumes that parents should have “equal shared parental responsibility” for their children but this does not mean that they should also have the right to enjoy equal time with their children.
The Court is now required to consider whether “substantial and significant care” by a parent is appropriate, but decisions will always be based on what is considered in the best interests of the children.
Q: Do only biological parents have rights in the eyes of the Court?
A: Family Law does not prevent people other than natural birth parents from seeking Court orders that would enable them to care for a child.
Grandparents regularly make such claims and are, in many cases, successful in having their grandchildren placed in their care by the Family Court.
Rather than rely on popular but wildly inaccurate myths, you should seek legal advice about your rights and responsibilities, your entitlements and your obligations at Family Law. This is the case whether you are separated after a marriage or your de facto relationship has broken down, whether you are a parent, a grandparent or, simply, a person interested in a child’s welfare and development.
Q. Who gets custody of our pet?
We can get orders in court to both have time (or ‘share custody’ in the American phrasing) with our dog/cat/goldfish.
A: ‘Fluffy’ may be part of your family but the law sees pets as property, not as people. After all, Fluffy can’t say who she wants to live with anyway!
Property is divided between the two people involved – legally, your pet will belong to one or the other of you after separation, and orders will not be made for you to ‘share time’ with the pet.
Of course, you can come to a non-legal arrangement between yourselves about time sharing with your pet and carry it out yourselves. However, if there is an argument between you about time with the pet, the only way a court can solve it is by allocating the pet to one of you, solely as part of the property division.