Separation is hard on everyone. But when children are involved it can really take its toll on both parents.
Unfortunately, in a divorce or separation the separating parents are not always able to decide between themselves what should happen with the children. This could be because they just can’t agree or it could be for more sinister reasons such as family violence or substance abuse. When this is the case, the court has to jump in and make the decision of what’s best for the child or children involved.
When you’re looking into going through the Family Court system it can be overwhelming. As with anything, if you’re going in without knowing a thing about the process, it can add to the stress of the situation. So, whilst it’s impossible to predict how a judge will rule in any case, there are certain things they have to consider before making their decision.
The decision-making process undertaken by any judge in any custody case is based on The Family Law Act. This Act requires the court to consider the following factors before ruling on what’s in the best interest of the child:
The child should have a meaningful relationship with both parents, where possible.
The underlying fact throughout the Family Law Act is that, if there is nothing that deems it impossible, the child should have a meaningful relationship with both parents. This is the primary consideration for any judge when looking at a child custody case.
The child should be protected from physical or psychological harm, abuse, neglect or family violence
The child’s safety is always at the centre of any decision a judge will make. It’s the most important factor to consider in any case. And, if there is a documented and proven history of abuse, neglect or family violence, it’s this which will deem the meaningful relationship with both parents impossible.
Is there a history of family violence?
Any history of family violence will be taken into careful consideration when determining how the child will be taken care of.
What are the child’s wishes?
Now, depending on the age and maturity level of the child, the court will take into high consideration their wishes. In order to do this, they have to consider how well the child is able to the interpret and understand the situation they’re in.
What the child’s relationship is like with each parent?
The court will look at what the relationship is like and what it has been like between the child and each parent. They will consider what role each parent will have in their future life, based on what they know now.
Are both parents committed to their role as a parent?
It’s easy to say you are but the court will be looking at whether the behavior and attitude of each parent throughout the process has demonstrated it.
How a change will affect the child?
The court will look at who they live with and where they live. They will consider how a drastic change in these circumstances would impact them.
What are the practicality of certain custody arrangements?
The court will determine if granting one parent majority custody may create barriers to things such as lifestyle, financial, education.
Can each parent meet the emotional and intellectual needs of the child?
This is of particular importance when the child has any emotional or intellectual disabilities.
Any special circumstance
No two cases or situations are ever the same, which is why the court needs to consider any relevant factors which are presented before making a final decision.
Article provided by Australian Family Lawyers