Guide to Child Custody

A guide to Child Custody
“Residence” was once called custody.

Residence deals with who the child is to reside or live with.

When parents separate or do not live together, one of the most important issues that they need to resolve is the children’s continued contact with their parents and where the children are to live.

The importance of this is in fact set out clearly in the Family Law Act 1975 which relates to all children in Australia. The Act sets out that its object is “to ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children”.

The Family Law Act also sets out that the principles underlying this object are, unless it would be contrary to a child’s best interests:

# children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together; and
# children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development; and
# parents share duties and responsibilities concerning the care, welfare and development of their children; and
# parents should agree about the future parenting of their children. Parents are encouraged to agree matters concerning their children rather than seeking an order of the court.

If parents can agree about the parenting of their children, who their children should live with and the contact that their children should have with the other parent, then they may if they wish formalize that agreement in several ways through the Family Court. There is no obligation to do so.

If, unfortunately, parents cannot agree about the parenting of their children, then an application can be made to the Family Court for its assistance in resolving disputes. Through the court process, the Family Court will encourage parents to reach their own agreement about the children but ultimately, if parents are unable to agree, the Family Court can make parenting orders about a child. A child residence order is a parenting order.

Whenever the court makes any orders about children, the most important consideration is what is in the best interests of the child.

This information is of general use only, you should see a solicitor to obtain advice pertinent and specific to your situation.

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