Any separation or divorce is difficult. Things can become harder when a child is involved though. Within the legal settlement, the topic of custody needs to be handled and the best interests of the child prioritized. However, many of us don’t understand exactly what custody means and looks like. That’s why we’ve put together this guide for you.
Custody terms
To start, you’ll need to understand the following terms.
- Legal custody: Legal custody refers to the custody holder who is responsible for the child’s religious upbringing, education, and medical care. This doesn’t cover day-to-day decisions, however, like what they sleep or when they go to bed. These kinds of decisions will need to be decided by the parent currently caring for the child. Legal custody can be granted to one parent or it can be shared between parents.
- Shared custody: Shared custody, also known as joint custody, means that both parents have custody of their children for mutually agreed upon times throughout the year. Together, parents will decide the child’s living arrangements, like living with each parent for different parts of the week, month or year. To qualify as shared custody, the child needs to spend at least 40% of the year with a parent.
- Split custody: In some situations when there are multiple children involved, the decision may be made for the children to live apart with different parents. This may look like the older child living with the father while the younger sibling stays with the mother. To qualify as split custody, the child needs to live with the parent for at least 60% of the year with the specific parent. However, this is not a common custody arrangement as it’s generally believed siblings should not be separated unless there are extreme circumstances.
- Physical custody: Physical custody refers to where the child is physically present. Therefore, even if the parents have shared legal custody of the child, if the child is currently staying with their father, it is the father who has active physical custody.
- Sole custody: Sole custody refers to the legal and physical custody of a child by one parent. The other parent (non-custodian) can still visit their child unless the court finds it unsafe to do so. This may be in cases where the non-custodian parent has put the child in danger, for instance.
What should the child’s schedule look like?
Your child’s schedule will need to take into account the existing custody arrangements, but also allow for “substantial and significant time” with each parent. When planning your child’s schedule to spend time with each parent, remember that:
- It needs to priorities the child’s needs. This will look different for every family. For some families, it is better to alternate weeks, but this may not be suitable for all families.
- The child must be able to develop meaningful relationships with both parents. Therefore, both parents must have the opportunity to be actively involved in their child’s life. Planning a schedule helps achieve that.
- Each parent must have substantial and significant time with their child. This includes weekdays, weekends and holidays.
- Your schedule will need to take into account your child’s regular routine, as well as holidays and any special events, like birthdays, Mother’s Day or Christmas.
Do I have to go to court?
If both parents mutually agree on the terms for the custody, there is no need to go to court. In fact, over 90% of custody arrangements in Australia are settled outside of court.
If you’re having difficulty reaching an agreement, speak with a mediator first, such as a family lawyer. They can help you decide on a custody arrangement that is fair. Remember, that it is ultimately about putting your child’s interests first. You need to be an advocate for your child and understand that what is best for your child may not match with what you want.
However, if meditation doesn’t work, you may need to go to court in order to settle the matter. This can be expensive and stressful for everyone involved, including your child, so do your best to avoid needing to resort to this option. Read our another article on "6 tips for easing the divorce process"
Final thoughts
This is just a short guide to child custody in Australia. If you would like to learn more, it’s best to speak with a qualified lawyer so that you can see how it effects your unique situation. Remember that the take away is though that you need to look after your child’s best interests when deciding on a custody arrangement.
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