Custody can take many forms. One of the least common arrangements is for one parent to be awarded sole custody. Most parents want to have a significant role in their children’s lives. However, there are cases where full custody is what’s best for the child. Let’s look at what you can do to secure full custody.
Key takeaways
Child custody covers parental responsibility and living arrangements.
Parties can agree to legal custody through a parenting plan or a consent order.
Interim orders allow a parent to organise temporary arrangements in urgent circumstances.
The Court will make a final decision immediately, or within three months of the hearing.
What are full child custody arrangements?
Parenting arrangements are commonly viewed in terms of custody. However, the Family Law Act refers to ‘parental responsibility’ and ‘living arrangements’. These cover the two primary elements of custody, including decisions about where a child lives, child support payments, child care involvement, and other considerations when parents separate.
The needs of the children involved, including the child’s age, are key factors in determining suitable arrangements. In cases of dispute, the Family Court may intervene to establish arrangements that serve the child’s best interests. Custodial parents may require legal guidance from family lawyers to navigate these complex decisions.
Parental responsibility. These are the duties and obligations parents have over long term decision-making for their children. This covers major concerns such as the child’s education, religious and cultural upbringing, and healthcare.
Living arrangements. The second key area is physical custody. This determines where and with whom the child will live. Parents may divide living arrangements equally. Alternatively, one parent may have primary care responsibilities, with the other parent having visitation rights.
Full custody may apply to one or both of these areas. The Court may determine that one parent should have full responsibility for all major decisions over a child. Alternatively, they could make all decisions in a particular area, such as religious instruction. In such cases, custodial parents may also be responsible for negotiating child support agreements and undergoing a child support assessment to ensure the child’s financial needs, including child care and other essential expenses, are met.
The Court prioritises child welfare, considering factors such as the child’s health and overall well-being. Decisions regarding child support and parental responsibilities also take into account the level of involvement each parent has in the child’s life. Family lawyers can provide guidance on navigating these legal processes to ensure the best outcome for the child.
The child’s living arrangements may also be given entirely to one parent. The other parent may or may not be given visitation rights. A study by the Australian Institute of Family Studies shows how rare these arrangements are. Only about 3% of parents use the Family Court to settle parenting matters. Of these cases, 45% grant full custody to the mother. 11% give full custody to the father.
What does Australian family law say?
The Family Law Amendment Act 2023 took effect in May 2024. One of the most significant changes made was eliminating the presumption of equal shared parental responsibility. The Court no longer assumes that parents have joint custody. This potentially makes it easier for a parent to gain full custody.
Gaining sole custody
What avenues are available for parents looking to secure legal custody? The first option is to try to come to an agreement. If an agreement cannot be reached, parents may need to apply for parenting orders through the Court.
These orders can outline decision-making responsibilities, living arrangements, and how the child will spend time with each parent, ensuring the arrangement serves the child’s best interests.
Full custody by agreement
If both parents agree that full custody is in their child’s best interests, they can create a parenting plan to reflect that decision. The ease of challenging parenting plans due to their informality makes them a risky choice. What about consent orders?
The Court granting full custody through consent orders is uncommon. While equal parental responsibility is no longer assumed, the Court still considers it valuable for a child to have a meaningful relationship with both parents. However, there are reasons why the Court may believe it’s in the best interests of the child.
For example, one factor the Family Law Act considers when determining parenting arrangements is the willingness of each parent to accept parental responsibility. If one parent shows their unwillingness, that may be grounds for granting full custody to the other parent.
Litigating full custody in the Family Court
Child custody disputes are thankfully relatively rare. The vast majority of co-parents don’t require court intervention to organise custody issues. However, for the person involved in a dispute, the Court may issue a court order to determine how parents will spend time with the child and who will be responsible for major decisions regarding their upbringing.
In such cases, the Court evaluates various factors, including the child’s best interests and, where appropriate, the child’s views. Parenting orders provide a legally binding framework to ensure clarity and stability in custody arrangements for families requiring judicial oversight.
Custody application
A child custody case begins with filing an initiating application. Before the application can proceed, the Court requires parties to complete pre-action procedures.
Family dispute resolution
You must make a genuine attempt to resolve disputes through approved dispute resolution services. This includes the following:
Serve the other party with a copy of the pre-action procedures.
Enquire about available dispute resolution providers.
Invite the other party to attend dispute resolution with an agreed-upon service, if safe to do so.
Provide written notice to the other party of your intention to pursue court action.
Once the parties have undertaken dispute resolution, they will receive a genuine steps certificate. This certificate acknowledges that the pre-action procedures have been completed.
Domestic violence
Mandatory dispute resolution isn’t necessary if there’s evidence of family violence. If you believe that your or your child’s well being is at immediate risk, call the police. You can fast-track custody arrangements in these circumstances with interim orders.
Interim orders
Interim orders can be sought in urgent situations involving family violence. The orders will stand until the Court decides on final orders. You can apply for interim orders with the same initiating application as final parenting orders.
Interim orders are determined through an interim hearing. The judge or judicial officer considers evidence submitted through affidavits and submissions from the parties. Cross-examinations are only conducted in exceptional circumstances.
Final court hearing
At the final hearing, the Court will make a determination about final orders. The hearing may take place over one day, or proceed over several days. A party, or their legal representative, will present their case. This involves several steps:
Inform the judge of your case in an opening address.
Give evidence to support your case. At this part of the process, the party and their witnesses should be available for cross-examination.
Make submissions to the Court about the evidence and the law.
Evidence for full custody
A party must present compelling evidence to justify legal custody. This can take various forms.
Protection orders. Existing protection orders for violence indicate that a child’s safety is best ensured with one parent.
Witness statements. Testimonies from teachers, neighbours, and other people who have first-hand experience of abusive behaviour can help justify full custody.
Photo or video evidence. Evidence of unsafe living conditions can convince the Court that full custody is appropriate.
Professional reports. Reports from experts such as psychologists can provide important evidence that the child’s best interests are served through full custody.
Supporting your parental capacity
It’s important to demonstrate your own ability to provide for your child when granting custody is being considered. Show evidence of stable living conditions, as the court considers factors such as housing, financial stability, and overall well-being. Proof of income can also demonstrate that you have the financial capability to create a stable living environment. In some cases, the child’s preference may be taken into account, depending on their age and maturity. The parties involved, including the non-custodial parent, may need to present supporting evidence to ensure the best outcome for the child.
Final decision
After the final hearing, the judge will decide on the proposed parenting orders. Sometimes, the decision will be made on the day of the hearing. On other occasions, the judge will reserve judgment. If judgment is reserved, a decision is generally made within three months of the hearing.
The Federal Circuit and Family Court of Australia oversee these matters, ensuring that legal decisions align with the primary considerations of the child’s best interests. In cases involving shared parenting or shared custody, the court will assess how parents will spend time with the child and allocate decision-making responsibilities. If family violence orders are in place, they may impact custody and visitation arrangements to prioritise the child’s safety and well-being.
Conclusion
Sole child custody can be sought through agreement in certain circumstances. However, in most cases, it requires court intervention to ensure that the arrangement is legally enforceable. Interim orders can enable a person to establish emergency arrangements if the circumstances are urgent.
Through litigation, the Court may award legal custody to a parent with supporting evidence, considering major issues such as the child’s well-being, safety, and best interests. The child’s standard of living and child views may also be taken into account when making a court order regarding custody.
Thanks Rowena, from Ferrall & Co Lawyers for your very knowledgeable friendly professional attitude to getting my case solved.
Would highly recommend her to anyone needing legal advise or court representation.
– Shane Gibbs
If you’re considering pursuing court action, legal assistance is essential. Our team can help you organise the most appropriate custody arrangements, whether that involves full custody or shared responsibilities. We provide guidance on applying for parenting orders, ensuring that your case is presented effectively and aligns with the child’s best interests.
