Myths of Child Custody in Family Law
1. When people separate the children will automatically live with the Mother.
There are no laws that state who a child should live with upon separation. As such it is up to both parents to determine who the children should live with until formal orders are made.
2. The courts always side with the Mother.
Any decision made in relation to who the children live with is not based upon gender. The court will look at the best interests of the child and make a decision based upon the children’s best interests.
3. A Parenting Plan is binding on both parents.
Anything other than a formal Consent Order is not binding on any parent. A parenting plan is not binding and can be breached at any time by any party.
4. If we don’t agree then I can just go to court and get Orders relating to the children.
Unless there is a risk of abuse to a child, or the matter is urgent neither parent can commence proceedings in the Family Court unless they have attempted mediation and have made a genuine effort to come to an agreement.
5. I can just take my child and move interstate permanently
Neither parent can remove a child from the state in which the child is living without the other parents consent. If a parent does remove a child, the court can make an order for the child to be returned.
6. I don’t have to tell the other parent about a child’s medical appointments
If you have court orders that allow for joint parental responsibility then both parents are to be involved in the decision making process of the significant issues involving the child such as education, medical, religion. If you don’t advise the other party you could be in breach of a Court Order.
7. Just because it is a Court Order, it doesn’t mean I have to follow it.
If you breach a Court Order serious ramifications can result. A court has the power and does issue penalties ranging from fines up to Imprisonment. It is not wise to breach Court Orders without first seeking legal advice.
8. She keeps bad mouthing me to the children but there is nothing I can do about it.
Wrong. You can seek Orders that prevent a person from denigrating or insulting you in the hearing and or presence of the children.
9. The children don’t have to spend time with the other parent is they don’t want to once they are 12.
Wrong. There is no set age that a court will look at when determining whether a child can elect to spend time with a parent. Before a court considers a child’s wishes they will look at such factors as the child’s age, maturity, the decision they have made, the understanding of the decision and the ramifications of that decision. Just because a court will look at a child’s wishes does not mean a court will blindly follow that child’s wishes.
10. Our Divorce Application formalises the Children’s Arrangements
Your Application for a divorce deals with only that….Your divorce. It does not formalise any agreements in relation to the children and is not binding upon the parties in relation to the arrangements for children. The only way to formalise children’s is by a Consent Order filed in court.