Custody of Children – How the Court determines Parenting Matters – Step 1 – Best Interests

Who gets custody of children is a question often asked of our Family Lawyers.  In working through who makes decisions about the children, where the children live and how much time they spend with the other parent and or other persons the Court has long abandoned the terms “Custody” and “Parental Rights”.  The child has all the rights.  Today, the Court’s paramount consideration is the best interests of the child.  Over time the Family Law Courts have adopted a legislative pathway in determining parenting cases and this series of articles will briefly cover each step.

Overarching principles in parenting cases

According to the Family Law Act, the “Best Interest of the child” is the paramount consideration of the Court when making a parenting order.

It also contains some broad objects which prescribe how the Family Court should make decisions about parenting cases.  These objects include:

  • Ensuring that children receive adequate and proper parenting to help them achieve their full potential;
  • Children have the right to know and be cared for by both of their parents;
  • Parents should agree about the future parenting of the children.

The Court keeps those objects in mind when it is making its decision.  The Court then works through a list of considerations.

Primary Considerations

The Court must consider the benefit to the child of having a meaningful relationship with both of the child’s parents.  Meaningful relationship has been said by the Courts to be a relationship which is important, significant and valuable to the child.

The Court must also consider the need to protect the child from physical or psychological harm, neglect, family violence and being exposed to such risks of harm.

Often these two considerations conflict with one another but do note that the protection consideration outweighs the benefit of a meaningful relationship consideration.

Additional Consideration

The Court then works through a list of other considerations which include:

  1. Views expressed by the child (how much weight is given to those views is dependent on the child’s maturity).
  2. The child’s relationship with grandparents.
  3. Likely effect of any changes in the child’s circumstances.
  4. Child’s right to enjoy his or her Aboriginal or Torres Strait Islander Culture.

In next week’s article, we look at how a Court decides who makes the big decisions about a child’s life.  Parenting cases are a difficult and delicate type of family law case.  If you are having issues with another parent about custody of children, call our expert Family Law Team now on 02 4324 7699.

Skills

Posted on

August 22, 2018

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