We hear the phrase “sole custody” when it comes to working out arrangements for a child or children following their parents’ separation.
The popular meaning of “sole custody” is that that you have care/custody of your child and you control the amount of time your child spends with the other parent.
However, in the Australian legal system, the word “custody” isn’t recognised as it implies children are property when they are not.
Instead, the Family Law Act 1975 uses terms like “sole parental responsibility” or “equal shared parental responsibility” which references a person who has responsibility to make decisions in relation to a child’s long term health and welfare, as well as the terms “lives with” and “spends time with” when referencing the time that a child spends with each parent.
What does “parental responsibility” mean?
Parental Responsibility is used in terms of how to make decisions about major long-term issues. This includes decisions about things such as education, health or religion. If a Court orders sole parental responsibility, that means one parent will be making those kinds of decisions without needing to consult with the other parent. Alternatively, if a Court orders equal shared parental responsibility, both parents should be making those major long term decisions with regards to the child, together and equally.
“Live with” is used in terms of the parent the child would reside with for the majority of the time.
“Spend time with” would be the time the child would spend with the parent they would not normally live with.
So, when would it be in a child’s best interests for a parent to have “sole custody” AKA for a child to only live with one of their parents and have limited or no contact with the other parent?
An outcome for one parent to have sole custody is quite rare. It is usually only achieved where a parent is agreed that they will see the children on an “as agreed’ basis, thereby granting sole custody to the other parent.
In very limited circumstances and only in the most extreme cases will the Court’s order that a parent has no time with their child as it is rare for a court to determine that such an order is in a child’s best interests.
This is because the paramount consideration in determining a child’s best interests is their right to have a meaningful relationship with both of their parents.
However, if there is an unacceptable risk of harm of a child spending time with a parent, the Family Courts always prioritise the safety of a child over their right to have a meaningful relationship with the other parent.
If you are concerned that your child is exposed to a serious risk of physical or psychological harm in the care of the other parent, you may therefore seek an order for “sole custody”.
In circumstances where there is an unacceptable risk of harm to a child of spending time with a parent, in these discrete circumstances, the Court will make an Order that a parent have sole parental responsibility for a child and that the child is have limited/no contact at all with one of their parents.
If you want to make an application for Sole Parental Responsibility and for your child to live with you (which doesn’t necessarily mean “sole custody” within the popular meaning of the word), here are some tips and traps you should try to avoid.
NOTE: Some of these “traps” may not apply in the specific circumstances of your case, if you and/or your child are at risk of harm from the other parent.
What NOT to do in Sole Custody Applications (or in any custody matter)
Criticise or talk negatively about the other parent to your child
Separations can be very hard and messy. For a lot of people, it will be the most stressful and emotional time of your life. The other parent of your child might be acting in a way you don’t agree with. It’s very important for your child that you don’t criticise their other parent in front of them. Involving children in those kinds of conversations can affect their mental health, self esteem and future relationships. We remind our clients regularly that when you berate the other parent in front of your child, you are also berating your child and telling them they are ‘no good’ as the other parent is 50% of their biology.
Talk to your child about separation/saying things that get the child “on your side”
Just as you love your children and want the best for them, they want that for you too! Telling your child how upset you are because of something their other parent did, is not appropriate, it involves children in adult issues that they should not be exposed to and it could even be seen as parental alienation. This is commonly seen when one parent tells a child that their other parent cheated on them or that the other parent ‘left us’ and deserted the family. Again, these kinds of comments can have a really negative affect on your child’s mental health, self esteem and future relationships.
“Block”/Cut off communication with the other parent
In circumstances where it is still safe to communicate with the other parent, it’s really important for your child that you keep communication lines open and respectful. Following a separation, you will need to establish new boundaries and let the other parent know what you expect of them. Do you want to limit communications to only matters relating to your child? Do you want all communication to only be by text? Do you need to remind them that you would like to know about any education or health developments for your child? Clear communication can work wonders on avoiding future conflict. Respectful communication is important to maintain a positive post separation parenting relationship. Good communication between the parents also sets a positive example for your child and it minimises the prospect of them experiencing their parents in conflict. Exposure of children to parents in conflict may have a negative impact on your client’s mental health.
Tell your child that they are allowed to choose
There is no set age at which your child is allowed to choose their own living arrangements. We understand that as children get older, they develop their own opinions, however, no child should have the responsibility of making a choice about their living arrangements.
In our experience, telling a child they get to choose where they live because ‘they are old enough’ puts an unhealthy burden on a child to ‘choose’ between the parents and this can have a negative impact on their mental health.
Rather, it is up to the parents to exercise parental responsibility and make decisions about where their child lives and time with the other parent.
If your parenting matter ends up in Court, it may be ordered that your child participate in an interview with a psychologist or social worker at which time the child will have an opportunity to express their views, which will then form part of a report called a Family Report. A child’s view is however only one of sixteen factors that the Court considers in determining what orders are in a child’s best interests. The weight a C ourt places on a child’s views in any parenting proceeding will depend on the age and maturity of a child and the reason the view is expressed.
Withhold a child
One of the most concerning phrases we could hear come out of a parent’s mouth is “they can have the children back when they agree to the property division” or “they can spend time with the child when a consent order is drawn up”. These kinds of comments demonstrate that a parent is putting their own needs before their child’s needs.
If the child would not be at risk in the care of their other parent, you should always be seen to be facilitating a relationship between the child and their other parent. Your child has a right to a relationship with their other parent as long as they are not at risk of harm in that parent’s care. At the end of the day, it is not about what you want, it is not about what the other parent wants. What is best for your child? Which leads us to our next point…
Not putting your child first
Try to remember in every decision you are making, the core consideration should be what will be best for your child. This is what any Court will be considering first and foremost in any parenting matter. You only want what is best for your child and it is important to remember that throughout the separation process. Whenever you are making a decision, try to put any emotions you may have about the other parent to the side and really consider, “is this what is best for my child?”.
Don’t sink to their level
One final piece of advice we would give is, don’t sink to their level. If you feel like the other parent is being selfish, not putting your child first, communicating in a disrespectful way… don’t sink to their level! If you end up in Court, a Judge will be made aware of their unsatisfactory behaviour. In comparison, they will see that you have been able to conduct yourself in a child-focussed and dignified manner. This will reflect very well on you.
Of course, everyone’s circumstances are different. We have outlined the above “traps” based on our experience. These are, unfortunately, things that are really common in parenting matters and can be really stressful for both parents and children.
If you would like to speak to us more about anything raised here please reach out.
Want more information?
Also check out the following blogs/information fact sheets:
- I want Sole custody for my child;
- Top 10 things people do wrong in child custody matters.
- How to apply for parenting orders
Have you recently separated? Are you having a disagreement with the other parent about the living arrangements that are in your child’s best interests? Are you wanting to pursue orders for “sole custody” for your child? Contact us today to book a reduced rate consultation with one of our experienced Family Lawyers to discuss your individual circumstances.
Article drafted by our experienced Family Lawyer Ellie Prior