Separation can be a difficult and emotional time, especially when there are children involved. One of the most pressing concerns for separating couples is deciding how to divide custody of their children. Custody arrangements can have a significant impact on the children’s lives, so it’s essential to understand the laws and guidelines around custody during separation.
Legal Custody vs. Physical Custody
In Australia, the term “custody” has been replaced with “parental responsibility.” There are two types of parental responsibility: legal custody and physical custody.
Legal custody refers to the responsibility for making long-term decisions about the child’s welfare, including their religion, education, and health care. Physical custody refers to where the child lives and who has day-to-day care of the child.
In most cases, both parents will share legal custody, meaning they both have a say in making decisions about the child’s welfare. However, physical custody can be more complicated, and there are several custody arrangements available.
Types of Separation
There are two main types of separation: informal separation and legal separation.
- Informal Separation is when a couple decides to separate without any legal proceedings. In this type of separation, the couple may make their arrangements regarding property division, child custody, and financial support without involving the court or legal system. This type of separation is not legally binding, and the couple may reconcile or change their arrangement at any time.
- Legal Separation also known as a separation agreement or a decree of separation, is a formal legal process that involves the court. In this type of separation, the couple may still be legally married, but they live separately and have a legally binding agreement on issues such as property division, child custody, and financial support. A legal separation may be used as a precursor to a divorce, or the couple may choose to stay separated without getting a divorce.
It’s important to note that legal separation is not the same as divorce, and the couple remains legally married. However, a legal separation may have similar legal consequences to a divorce, such as property division and child custody arrangements.
In Australia, legal separation is not required before divorce, and couples may apply for divorce directly. However, legal separation can be a useful option for couples who are not yet ready for a divorce but wish to have a formal agreement regarding their separation.
Rights Related to Child Custody During Separation
When it comes to child custody during separation in Australia, the most important factor is the best interests of the child. The Family Law Act 1975 sets out the principles for determining child custody and the rights of each parent. Here are some key rights to keep in mind:
- Both parents have equal parental responsibility: Both parents have the right to be involved in their child’s life and make decisions about their upbringing, including their education, healthcare, and religion. This means that even if the child lives with one parent in custody during separation, the other parent still has a say in important decisions.
- The child’s best interests are the priority: The primary consideration in determining child custody is the best interests of the child. This includes factors such as the child’s relationship with each parent, their emotional and physical needs, their views (depending on their age and maturity), and any history of family violence or child abuse.
- Parents have the right to apply for parenting orders: If parents cannot agree on custody arrangements, they can apply to the court for parenting orders. A parenting order is a legally binding agreement that sets out the custody arrangements for the child.
- Parents have the right to spend time with their child: Both parents have the right to spend time with their child, regardless of who has physical custody. This means that the parent who does not have physical custody may have visitation rights or be entitled to spend time with the child regularly.
- The child’s views are taken into consideration: Depending on their age and maturity, the child’s views may be taken into consideration when determining custody arrangements. This implies that the child might be able to voice their opinion and have the court consider it.
It’s important to remember that child custody arrangements can be complex, and it’s crucial to seek legal advice to understand your rights and responsibilities. Working together with the other parent and prioritising the best interests of the child is always the best approach to finding a suitable custody arrangement.
Is There an Easy Way to Make a Separation Parenting Plan? | Custody During Separation
Creating a separation parenting plan can seem daunting, but there are resources available to help make the process easier. Here are some steps to consider when creating a separation parenting plan:
- Determine custody arrangements: The first step is to determine the physical custody arrangement. Will the child live primarily with one parent, or will they share custody? If the parents agree to share custody, then it is important to put in place a schedule for when the child will spend time with each parent.
- Decide on communication methods: Decide on how you and your co-parent will communicate about the child’s needs and activities. Will you use email, phone calls, or a parenting app? How often will you communicate?
- Determine decision-making responsibilities: Both parents have equal parental responsibility, but certain decisions may be made by one parent or require both parents’ agreement. Decide how decisions will be made about the child’s education, healthcare, and religious upbringing.
- Create a schedule for special occasions and holidays: Create a schedule for special occasions such as birthdays, holidays, and school vacations. Decide how you will share these occasions, and consider alternating them each year.
- Determine financial arrangements: Decide how you will share financial responsibilities for the child’s needs, including childcare, healthcare, and education. Determine how you will handle expenses such as school supplies, extracurricular activities, and clothing.
- Review and revise the plan: Once you have created the separation parenting plan, review it regularly to ensure it still works for your family. You may need to make adjustments as your child grows and their needs change.
There are also online resources available, such as the Australian Government’s Family Relationship website, that provide templates and guidance for creating a separation parenting plan. It’s important to keep in mind that every family is unique, and the plan should be tailored to fit your specific situation.
Also read: Can You File for Custody Online?
Separation can be a challenging time for families, especially when it comes to deciding custody arrangements for children. Understanding the laws and guidelines around custody during separation is essential to ensure the best interests of the child are met.
By working together and putting the child’s needs first, parents can find a custody arrangement that works for everyone involved. If you need help navigating the process, consider seeking the advice of a child custody lawyer or mediator.
Director of Melbourne Family Lawyers, Hayder manages the practice and oversees the running of all of the files in the practice. Hayder has an astute eye for case strategy and running particularly complex matters in the family law system.
