Child Custody – Who Gets The Children?

Child Custody – Who Gets The Children?

Child Custody

Child custody refers to the legal and practical relationship between a parent and child. In Australia, family courts prioritize the best interests of the child when making custody decisions, and may consider factors such as the child’s relationships, living arrangements, and the capacity of each parent to provide for the child.

Emotions always run high when the family unit breaks down, and it is not uncommon for separating parents to want to be the one who gets custody of the children. Avoid the emotional mess of separation and divorce – let’s learn what it means to put a child’s best interests first.

What Is Sole Custody?

Before 1995, Australian parents who had separated from their spouses might have petitioned the family law court for sole custody of the children. The term custody is an outdated term no longer used. Today, they would apply for parental responsibility. It means the same thing.

Under the Commonwealth Family Law Act, 1975, the presumption is that both birth or legally adoptive parents of children equally share child custody. The presumption of equal shared parental responsibility within Australian family law is that it is in children’s best interests. All that means is that until the children reach 18, the parents are responsible for decisions regarding the upbringing, education, religion, behaviour management, medical, and legal decisions inherent in a parents’ role.

Why Do Parents Want Sole Parental Responsibility?

Often, people want sole parental responsibility or sole custody because they want to control how much access the other parent has to the children and how that access will look. Some parents might want official paperwork stating they have full parental responsibility because they’re afraid the other parent won’t allow them access to their children. Some may honestly believe that contact between the children and the other parent poses a threat to the children.

A sole parenting order from the court can limit visitation access for the other parent without necessarily removing their responsibility and input when making important decisions regarding the child.

How Do You Go About Getting Sole Custody?

Before heading off to the family law court for sole custody, try to work things out between yourselves. After all, the presumption of equal shared responsibility means that the Australian law considers both parents raising children together as the ideal. If you can’t hammer out the issues yourself, it is time to contact a lawyer and get legal advice.

The lawyer you call for legal advice will discuss important issues, including your parental rights, and what will be required from you if you want to apply to the Australian courts for sole parental responsibility.

The Family Court of Australia will expect both parties to attend a Family Dispute Resolution Conference, which is basically a mediation meeting. These meetings aim to help the parents reach a middle ground at which they can agree. This agreement can be complicated when emotions are on high alert.

It is always positive when parents can reach an agreement concerning the care and upbringing of their children without the courts and lawyers’ help. If they can reach an agreement at mediation, there is no need to petition the court for sole custody in Australia. However, if you can both agree on terms at the mediation conference, you can submit your written agreement or parenting plan to the court and make it legally binding.

It isn’t necessarily easy to get a parenting order for sole custody from an Aussie family court. The family law court only gives such a parenting order when it decides, based on evidence, that the presumed shared responsibility is not in the child’s best interests. Such custody orders might include:

  • The sole responsibility for a child’s life, without the need to inform or negotiate with their former partner around those responsibilities explicitly ordered by the court.
  • A statement that the child will live exclusively with one parent.
  • How much and what type of contact the former spouse may have with the child.

Each parent’s physical and mental health is taken into account when deciding the outcome of an application for a parenting order. In Australia, courts generally issue parenting orders on interim or final terms, which means short or long-term. Importantly, the Act expressly states that any terms listed on the interim orders must be disregarded in Australia when making a final order. Submissions can amend both interim and final orders to the court at a later date.

When Would Sole Parental Responsibility Be Granted?

Just because your partnership didn’t work out with your spouse doesn’t mean you can’t successfully share the responsibilities of parenting your children. It may take some time for the emotional angst to die down on a personal level, but if you can agree to work together for the best interests of your children, sharing parental responsibility is the way to go.

A court is unlikely to say a parent can’t spend time with their child unless there is evidence to show that the child would be exposed to danger if that parent was allowed to spend time with them. Sometimes, even if there is some level of danger posed to children, an order may be made for supervised contact. A parenting court order might also include access for grandparents and other parties.

The court will only make a ruling for sole custody if it finds that shared responsibility is not in the child’s best interest. The court can change parenting orders if a parent concerned about their child’s safety. The concerned parent can apply to the court for a variation of the order. They must provide a full report outlining their concerns, including evidence including police reports or other witness statements.

Best Interests Of The Child

The court considers two primary points when determining whether or not to grant an order for sole parental responsibility in Australia.

  1. The benefit of maintaining a meaningful relationship with both guardians for the child.
  2. The need to protect the child from harm – physical, psychological, sexual – from being exposed or subjected to abuse, neglect or family violence.
  3. Where evidence of family violence exists, the court is more likely to consider a sole parental order to be in the child’s best interest.

The court is legally required to consider the following factors when determining whether to grant a parental order.

  • The views of the child.
  • The nature of the relationship between the child and the parent or other persons, including grandparents.
  • How willing each parent is to facilitate and encourage a continuing relationship with the other party.
  • The capability of each of the child’s parents to provide for the needs of the child.
  • Any other circumstance or fact the court deems relevant.


  1. Are custody and guardianship the same thing?
    Custody is an outdated legal term, but essentially it does relate to guardianship. Guardianship describes the practical and legal relationship between a child and their parent or guardian. It deals with who has the right to decide where a child will live, go to school, and who will look after them.
  2. What forms of child custody are there?
    There is legal and physical child custody or parental responsibility. Legal deals with decisions about education, medical, dental, and psychological health, and religion. Physical is primarily concerned with where the child lives.
  3. Do we have options when it comes to physical child custody?
    Yes, you do. There are several forms of parental responsibility options dealing with where children may reside. Sole custody is where only one parent has physical responsibility for a child, even if the other parent has visitation rights.Equal shared parental responsibility is where both parents have the child for equal amounts of time. The parents equally share responsibility for all decisions surrounding the care and provision for their child.Guardians may enter into different arrangements so long as they are in a child’s best interests. Parenting orders can include an arrangement where the child resides at the same home, and the parents are the ones to swap over. This arrangement allows the child to permanently live in one place, surrounded by their own belongings regardless of which parent has control at the time.Split arrangements where each parent has sole responsibility for some of their offspring are also an option. Sometimes children will reside with one parent full-time for half the year before swapping over to the other parent for the other half of the year.
  4. What if the judge decides that it is not in the child’s best interests to be in either parent’s custody?
    Sometimes a family law court judge may decide that it is not in the child’s best interests to reside with either parent. The courts make these decisions with the utmost attention to detail, and the courts make every effort to ensure they place such children with an extended family member where possible. Where that is not possible, they find a culturally appropriate foster placement for the children. Generally, parenting orders place the children under the guardianship of the Minister for Family and Community Services, who acts as their guardian for all legal matters, leaving the practical, day-to-day care of the children in the hands of appropriately licensed and registered foster carers.

Simon Fletcher is the Principal Solicitor at FletchLaw. He has been admitted as a solicitor to the High Court of Australia and the Supreme Court of New South Wales. His academic qualifications include of a Bachelor of Laws, a Graduate Certificate in Professional Legal Practice and a Master of Applied Laws (Mediation and Family Law Dispute Resolution). He can offer assistance in a wide variety of legal areas.

Do you have a problem with Child Custody or any other legal issue? Call us on 02 9159 9026 to find out how we can help.

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