Reaching a mutually agreeable settlement can be challenging, and it requires both parties to be willing to work together and compromise.
In this article, we’ll provide some tips on how to reach a great custody settlement through mediation.
Definition of Custody Settlement
Custody settlements are legal contracts that detail the terms and conditions for the care and custody of a child or children whose parents are separated or divorced. The Family Law Act 1975 (Cth) and its accompanying regulations govern custody arrangements in Australia.
Custody Settlement Through Court
Custody settlements can be reached through either negotiation or legal proceedings. Parents can create a parenting plan or consent order if they can reach an agreement through negotiation.
If the parents are unable to reach a custody agreement through negotiation, they may be required to go to court to have a judge decide. Typically, the court procedure for determining child custody involves the following steps:
- Filing an Application: One parent files an Initiating Application with the court, setting out the parenting arrangements they seek, and serves the other parent with a copy of the application.
- Participate in Mediation: Typically, the court will require the parents to participate in mediation to attempt to reach a custody settlement by agreement. If they can do so, then they can file Consent Orders which puts an end to the court process and litigation.
- Pre-Hearing: If the parents cannot reach an agreement through mediation, the parties will proceed to a pre-hearing, such as a directions hearing, to identify the disputed issues and attempt to narrow them.
- Hearing: If the matter proceeds to an interim or final hearing, each parent will present evidence and arguments to the judge, who will make a custody determination based on what is in the child’s best interests.
Also read: Impact of Living with a New Partner on Custody Cases
Custody Settlement Without Going to Court
When it comes to child custody disputes, many parents understandably hope to avoid the adversarial and often lengthy process of going to court. Fortunately, there are alternative avenues available for parents seeking to establish full child custody without the need for litigation.
How to get child custody without going to court? In this section, we will explore various options such as parenting plans, consent orders, the involvement of Independent Children’s Lawyers, and the collaborative law approach, providing insights into how these alternatives can help parents achieve full child custody outside the courtroom.
Here are your options:
- Negotiation and Mediation: In Australia, the Family Law Act 1975 encourages parents to resolve custody matters through negotiation and mediation, considering the best interests of the child as the primary consideration. This approach can help avoid the need for court intervention and provide a more amicable solution for everyone involved.
- Parenting Plans: Parents can create a parenting plan that outlines the agreed-upon custody arrangements for their child without court involvement. A parenting plan is a written document that covers aspects such as living arrangements, visitation schedules, decision-making responsibilities, and other important factors concerning the child’s upbringing. Although not legally binding, courts generally consider a well-documented and mutually agreed-upon parenting plan as persuasive evidence if a dispute arises in the future.
- Consent Orders: For a more legally binding arrangement without going to court, parents can apply for consent orders through the Family Court of Australia or the Federal Circuit Court. Consent orders formalise the agreed-upon parenting arrangements, converting them into legally enforceable orders. Both parents must sign the consent orders, and the court will review the document to ensure it is in the best interests of the child before approving it.
- Collaborative Law: Collaborative law is another alternative dispute resolution method that aims to keep the matter out of court. It involves both parents and their respective child custody lawyers committing to working together to reach an agreement. Collaborative law can be effective in fostering open communication, minimising conflict, and promoting a cooperative approach to child custody matters.
How We Can Help You
From the perspective of a prominent family law firm, the challenge of assisting clients in custody battles without resorting to court litigation requires a delicate balance of legal expertise and mediation skills. When Laura approached our firm amid a contentious custody dispute, we understood her concerns and immediately set to work. She was eager to learn how to get child custody without going to court.
By facilitating open and honest discussions, we guided Laura and her ex-spouse towards finding common ground. Together, we crafted a comprehensive parenting plan that prioritised the best interests of their child. We then assisted Laura in applying for consent orders, ensuring legal enforceability while avoiding court proceedings.
Thanks to our alternative approach, Laura and her ex-spouse successfully obtained full child custody, preserving their co-parenting relationship and prioritising their child’s well-being. This case exemplifies our commitment to providing compassionate and effective solutions, achieving positive outcomes for our clients without the need for court intervention.
Also read: How to Split Child Custody
Conclusion
Whether reached through negotiation or litigation, custody settlement can provide children with a stable and predictable environment in which to flourish after a separation or divorce. If you are involved in a custody dispute, we recommend that you consult an experienced child custody lawyer to ensure that your rights and your child’s best interests are protected.
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.
