FAQs on Child Custody and Parenting Arrangements

1. What factors determine child custody?

In Australia, the primary consideration for determining child custody is the best interests of the child. The court assesses several factors, including the safety of the child and the child’s caregivers, any views of the child, the child’s needs (including developmental, psychological, emotional and cultural), the capacity of each parent to meet the child’s needs, the child’s relationship with each parent and other significant people and, where applicable, the right of a child who is Aboriginal or Torres Strait Islander to enjoy and develop a positive appreciation for their culture and connections with their family, community, country and language.

2. How does mediation work in custody cases?

Mediation is a process where both parents meet with a neutral third party, often a legal custody lawyer, to discuss and resolve disputes regarding parenting arrangements. The goal is to reach a mutually agreeable solution without the need for court intervention. Mediation is encouraged where appropriate as it can be less stressful, more cost-effective, and quicker than court proceedings.

3. What is the difference between legal and physical custody?

Legal custody is the old term referring to the right to make major long-term decisions about your child’s life, including education, health care, and religious upbringing. Physical custody is the old term which refers to where the child lives and the daily care arrangements. Both types of custody can be shared between parents or awarded solely to one parent, depending on the circumstances.

4. Do I need a lawyer for child custody cases?

While it is possible to reach an agreement without legal representation, having a child custody lawyer can provide significant advantages. A lawyer can help you understand your rights, ensure that your child’s best interests are protected, and represent you in court if necessary. Without legal representation, there is a risk that agreements may not fully protect your rights or those of your child, potentially leading to disputes or complications in the future. Legal guidance is particularly important in complex cases or when there is a high level of conflict between parents.

5. What happens if we cannot reach an agreement on custody?

If parents cannot reach an agreement on custody arrangements through mediation or negotiation, the matter may need to be resolved in court. The court will make a decision based on what it deems to be in the best interests of the child. It is always advisable to seek legal advice early in the process to explore all available options and avoid the stress of a court battle if possible.