Men’s Rights In Child Custody – Where do you stand?
From the start, I need to make it clear that under the Family Law Act 1975 in Australia, technically there is no such thing as men’s rights or women’s rights. In fact, the only rights that the court is legally obliged to consider is the Children’s rights.
The Family Law Act states that “a child has a right to be known and cared for by both parents”. What this means in practical terms is that the court is not with the sex of the parent but rather is concerned with making sure the child spends time with each parent as much as is reasonably possible.
Yeah, you say but in practical terms, this means that the father’s see the children only every second weekend. While this may have been the case many years ago, the court has come forward in leaps and bounds and now understands the importance of the children having a relationship with dads for more time than just every second weekend.
So does this means that Father’s are now entitled to a shared child custody arrangement?
Well the answer is yes, no and maybe…
Yes- the law states (in summary) that as long as there is no risk of harm to the child then the court MUST consider whether a shared care arrangement would be appropriate in the circumstances. The meaning of harm is extremely broad and can include such things as physical, drugs or sexual assaults, emotional harm (such as abuse, threats, denigration, being exposed indirectly to domestic violence such as seeing bruises on another person, seeing damage to property etc) If none of these issues are present then the court must consider shared custody.
However- the court only has to consider shared custody. No where does the law stated that the court must make an order for shared custody. In determining whether a shared child custody arrangement is appropriate, the court will have regard to the best interests of the child, the practicalities of implementing the proposal and the ability of the parties to communicate. In practical terms this means the following:
1. COMMUNICATION- If the Mother and Father are not able to have effective communication concerning the daily care of the child then the court is more than likely not going to make an order for shared custody. This doesn’t mean that mum and dad have to be best buddies, nor does it mean that they have to be able to speak regularly on the telephone. But what it does require is for mum and dad to at least be able to email each other to relay (in a civil manner) details concerning the children’ schooling, medical issues or other concerns that may arise from time to time. Even if the communication is civil from one parent and hostile from the other, the court will have a hesitation in permitted a shared custody arrangement.
2. PRACTICAL ISSUES- There are many practical issues that will prevent a court from making an order for shared Custody.
(A) Distance- If the Mother and Father live far away from each other then the court will question such things as how will the children get to school? How much time will the children be travelling between the parents and how often? The further away the parents live from each other, the less likely the court will make an order for shared time.
(B) Availability- If one parent works a normal 38 hour week, while the other does not work at all then this is a factor that the court will consider. If a child is likely to be placed in day care 5 days a week when another parent is ready willing and available to care for them, then the court is going to err towards placing the child with the other parent for more of that time. By saying this, the court is not suggesting that a father or mother cannot use daycare but it cannot be excessive. If however a family support network is available to help care for the children then this will be treated very differently to daycare as the court is encouraging of a child spending time with extended family. Before a father considers shared time as an option they need to consider how it can practically occur with current work commitments. If the father flies in and out on a 3 weeks on 1 week off type roster then obviously a shared care arrangement cannot work. In saying this no 2 situations are the same and the arrangement can be tailored to suit the individual needs of the situation.
3. CHILD’S AGE & NEEDS- A child’s age is extremely important when determining when shared time should occur. There are varied differences of opinion by different experts and every Judge will have a different opinion as to when a child is capable of handling a shared custody arrangement. The younger the child the more important it is for them to have a primary carer as separation anxiety is much stronger with younger children. If a child is a baby being breastfed then no court is ever going to permit the child being in a shared custody arrangement as the child needs to be with the mother for feeding (it is no argument to say she can simply express milk). Some experts suggest that shared custody should not occur until a child is of school age, other suggest it can be as young as 2 years old.
Regardless of the age for when shared custody should occur, it is important to note that the access parent should have as much time with the child as is reasonably able. The standard rule of thumb is that where shared custody cannot occur due to the age of the child then the access parent should have shorter periods of time with the child BUT have time more often (eg instead of all weekend the access parent could see a baby for, say, 2 hours every 2-3 days). The increased access times are to help maintain the bond between child and access parent.
The issues raised above all lead to a really important message for men, and that is Women don’t automatically ‘get’ the children BUT men need to always be civil and continue to try and maintain open lines of communication with the mother and spend as much time with the children from separation as possible. If the mother is refusing a father access to his children then don’t delay. Men need to move quickly to court to get access to children and enforce men’s rights to custody of children.