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Parenting & Children's Matters FAQ

Do children have a say in custody cases?

Children who are aged 14 and over have the right to choose their custodial parent. As parenting agreements also tend to consider emotional support as a factor for deciding who will be a child’s custodial parent, opinions expressed by children aged between 8-14 have still been known to impact custody arrangements. Parenting agreements can also be altered as children age to ensure custody arrangements will consistently support the child’s changing needs.

Is it harder gaining joint custody or sole custody?

As joint custodial arrangements are reliant on a structure of co-parenting where parents largely agree on all aspects of their child’s upbringing, it is actually simpler organising sole custody arrangements over joint or shared custody. This isn’t to say sharing custody is impossible, however. Such agreements can be arranged and maintained with the use of family mediation sessions.

What does it mean to have the ‘best interests of the child’?

‘Best interests of the child’ is an integral term in the discipline of child custody law which is used to determine which of the child’s parents is best suited to provide for the child’s unique needs or care requirements. A parent can prove they have the best interests of the child by demonstrating they have the parenting skills, time availability, concerns for safety and wellbeing, and other elements of custodial responsibility. You can read more about proving the best interests of the child in our article on children’s matters.

Can the same Family Lawyer represent both parents in child custody cases?

It is considered a conflict of interests for the same Family Lawyer to represent both parties in any given case, including child custody cases. It is possible, however, for both parties to be represented by Family Lawyers from the same firm.

Can separated parents both file a claim for Child Care Subsidy?

Separated parents can only file individual claims for Child Care Subsidy via Centrelink if they share the costs associated with child care. The Department of Social Services stipulates, however, that only one parent can make a claim on a care session at a time, so separated parents are unable to make claims on the same sessions of care. False claims may result in penalties such as fines or even a loss of custody.

How are child custody arrangements determined?

A child custody agreement is created when the parents determine an arrangement for their children's future living arrangements. Usually, a child custody agreement is made in accordance with the best interests of the child, although it can differ from state to state. A family lawyer can advise you on the best way to create a child custody agreement that is the most suitable for you and your children.

Can child custody arrangements be settled outside of Court in Australia?

Child custody arrangements can be settled outside of a court through mediation. Mediation is a process in which the parents meet with a mediator, such as a family lawyer, and try to come to an agreement that is suitable for both parties. If a settlement is not reached through mediation, the child custody issue will be determined in Family Court.

What role do ‘parental rights’ play in child custody arrangements?

In Australia, parental rights are the rights and duties of parents to care for and make decisions about their children. Custody is one form of parental right where a parent has the right to make decisions about their child’s life, such as school and medical decisions. It's common misconception the parental rights of the mother supersede that of the father, but in reality, the parental rights of both parties are considered equally when determining child custody arrangements.

What determines the best interests of the child?

The best interests of the child is what determines the outcome of a child custody arrangement. There are a range of specific factors when determining the best interests of the child, such as parental capacity, cultural values and society views. For example, living with a parent with a stable job and time in their schedule to pick the child up from school who values kindness, acceptance and understanding could be in the best interest of the child.

What is a co-parenting agreement?

A co-parenting agreement is an agreement that protects the rights and responsibilities of both parents. Child custody arrangements can be confusing for the parents involved and for their children, so it’s important to try to make sure the arrangement is as clear and simple as possible for all parties.

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