It’s commonly believed that when a child custody case is before the court, that the mother will automatically receive the children. The truth is that when a court is deciding child custody, gender is completely disregarded. The court’s main concern is the best interests for the child/ren. The facts of the case are considered and a decision handed down that best benefits the child. The Family Law Act also states that the child has the right to be both cared for by both of his or her parents. The courts will look at what situation best protects the child from both physical and physiological harm, and the court will encourage all involved to come to a mutual situation.
Child Custody & Parenting Arrangements
Firstly, there are three forms of parenting arrangements: a parenting plan, consent order and parenting order. Before a discussion begins on each one of these forms, it is best to establish what a parenting arrangement entails. A parenting agreement will usually address:
- the living arrangements of a child
- who the children will spend time with and when
- school/child care arrangements
- medical arrangements
- financial support such as child support
- the communication between parents
It is interesting to note that the parenting arrangement does not just include parents. If it is in the best interest of the child, the arrangements can include anyone from grandparents to extended family or those that are close but not related. However, both parents must be involved in the agreements made over the children and their arrangements. If both parents agree on many things, they don’t need to attend court, instead, they can create their own parenting arrangements using the help of solicitors.
A parenting plan is created by the parents with legal help. It is a written agreement and must be signed and dated by both parents with the terms set out in the arrangements. However, it is not legally enforceable and does not need to be witnessed or hold a set structure. It is recommended that both parents receive legal advice before they create their parenting plan in order to ensure they address the right issues. If you can solve your child custody issues this way, it’s the least costly and time-consuming method.
However, if you find that you have left something out of the parenting plan or wish to change your plan for whatever reason, you can create another written agreement that will also be signed and dated by both the parents. If you already hold a parenting or consent order and you create your plan after those orders, then any terms of the original order which usually vary will become enforceable. However, there are varied terms to this rule so it is best to seek legal advice before assuming the new terms.
You may worry your agreement is not legally binding and you can therefore apply to the court for a consent order. It is fairly similar to the parenting plan except it will be approved by the court and be legally enforceable. To begin the process, you must complete the necessary court documents and then attach it to the draft of your parenting plan. You must get your draft signed by an appropriate witness. You should receive legal advice to ensure you have not left anything out of your draft. If the court approves of your consent order, then both parents will receive a copy of the documents.
A parenting order is created by the courts and discusses all your responsibilities. This order is created in reference to the legislation and if not followed strictly, then consequences can occur. Before applying you should try and reach an agreement through family dispute resolution. You must include a certificate from a family dispute resolution practitioner with your application saying that you’ve been to, or attempted to go to, family dispute resolution, or that it’s their opinion that it’s not appropriate for you to go.
Receiving Legal Advice
It is always best to receive legal advice when creating parenting arrangements for your child custody issues, because this advice may raise issues or help you decide what is the best decision for you and your children. Legal advice may also help mediate with your ex-partner. It is always best to make your agreement without the assistance of the court, and seeking legal advice is the first step.