When a couple separates, quite often there are children involved, and the biggest questions and concerns tend to be around them. How will this affect them? Who will they live with? How do we work it all out?
Here are some facts on the law and what your options are when it comes to your children.
What Are My Rights?
Most people are shocked to learn that parents don’t have any rights to their children after separation and divorce. That goes for both mums and dads.
The people who have rights under Australian law are the children. They have a right to a meaningful relationship with both of their parents.
Who Will the Children Live With?
There are no rules or formulas in Australia for who the children live with, or for how much time they spend with either parent. The law says that the most important thing is to consider the best interests of the children. Parents always agree with that, but often have different ideas about what is in the best interests of their children.
The Law is 50:50, Isn’t It?
There is a common belief that the law is that children should spend half time or week about with each parent. Sometimes that is best for children, but it is not what the law says, and it is not the right of either parent to have that arrangement. Also, 50:50 care is not always in the best interests of children.
If you are not a 50:50 parent, that does not mean that your children will feel that you love them less. It is true to say that parents count the days, and kids count the quality of the days they spend with their dad and mum, which means that the whole 50:50 debate is usually one that interests the parents and not the kids. If you ask children, they will usually suggest 50:50 because that’s what seems logical to them as a way of ensuring that they are not voting for one parent over the other. Being asked to say or do anything that shows they prefer one parent over the other is most often a nightmare for kids whose parents are separating.
Most often, the best people to decide what is best for your children are you and your spouse. That does not mean that you have to “go it alone” in working out a parenting plan. You can ask the help of a child psychologist, a mediator, family or friends with experience and wise suggestions. Most families find that the arrangements for their kids need to, and do, change over time. The way you start out does not have to be the way you go on for all time.
If you cannot decide what is best for your children, it is vital to ask for help so you can avoid court. Speak to a child psychologist, a mediator, a lawyer, your GP. Child psychologists who work in child custody cases will all agree that children and families are damaged by litigation.
Some points that a child psychologist or mediator will ask you to remember are:
- Always put your negative feelings for each other aside.
- Keep conflict away from your children.
- See the situation through their eyes.
- The age of your kids and the relationship they have with each of you make a difference to what arrangements are going to be best for them.
- Your kids don’t always need to go in pairs or packs, and it is ok if they spend separate nights and days with one parent.
Do We Need Court Orders?
Parents do not need court orders. Most families can live by a less formal agreement, being a parenting plan, which is a written, dated, and signed document setting out the time schedule for the children and other agreed principles and values.
When Court is Necessary and What to do About That
Sometimes you have no alternative but to go to court. That can be the case where there is high conflict, or complete disagreement about what is best for your children. It can be necessary when there is family violence, when one or both parents are experiencing a mental illness, personality disorder, dependency issues, or are a high conflict personality. In those cases, the damage and cost of litigation is often better than an ongoing unresolved battle between parents.
Enlisting the help of a child psychologist early on is good advice if you find yourself needing the court to make decisions for you. Make sure that your lawyer has experience in such cases. This is not a situation where your children will be helped by inexperience, no matter how modest the monetary cost might seem by comparison with the cost of high quality experience.