Parenting After Separation – Parental Responsibility Vs Custody

Until 1995, a parent who did not want their former partner to have access to their children could ask the Court to grant them ‘sole custody’. This is no longer the case and the term ‘sole custody’ isn’t used within the legal system. The Family Law Act stipulates that each parent of a child or children under the age of 18 has the same parental responsibility unless otherwise ordered by a Court. If you are looking for a child custody lawyer in Melbourne, the family law team at Robert Wood and Associates are here to help. It is important to remember that custody and parental responsibility are different and should not be confused with each other, so let’s take a look at what it all means.

What Is Equal Shared Parental Responsibility?

The Family Law Act 1975 defines parental responsibility as “All the duties, powers, responsibilities and authority which, by law, parents have in relation to children”, and is based on the assumption that each parent has equal responsibility for their children, even after divorce or separation. Each parent remains responsible for their child until the child reaches the age of 18, unless otherwise specified by the Court. There are six main points that are considered as major long-term issues that parents with parental responsibility are required to make decisions about, these include the child’s:

  • Education
  • Healthcare and medical procedures
  • Religious and cultural upbringing
  • Name changes
  • Travel documents
  • Living arrangements

Parental Responsibility is Not the Same as Custody

Having equal shared responsibility does not mean that both parents have equal custody, and if one parent has sole parental responsibility, it does not mean the children are restricted from spending time with the other parent. Shared parental responsibility means that even if the children do not live with both the parents, the parents are still expected to communicate and make an effort to agree on major decisions relating to the children.

Sole Parental Responsibility

Usually, the Court is reluctant to grant sole parental responsibility, as it considers a relationship with both parents to be in the best interests of a child. If it is shown that one parent is causing the child harm or exposing them to harm, the Court will determine that a relationship with that parent is of no benefit and will consider sole parental responsibility as a solution. If you have sole parental responsibility, it means that you do not have to consult with the other parent of the child before making major decisions concerning the child. This order is unlikely to totally disallow the other parent from access to their children and even where that parent may present a level of danger to the children, an order for supervised contact could still be given.

How Do You Rebut the Presumption of Equal Shared Care?

For the Court to grant sole parental responsibility, you will have to provide genuine reasons as well as a detailed report related to the claim. This may include police reports, witness statements and evidence showing that shared parenting will be more harmful than a sole custody parenting order. Some of the reasons to rebut may include:

  • Abuse – one of the parents is subjecting the child or children to physical, sexual or mental abuse.
  • Neglect – one of the parents is unable to care for the child or children appropriately and/or is making decisions contrary to the children’s best interests.
  • Substance Abuse – one parent is suffering from addiction to drugs or alcohol.
  • Mental illness – one of the parents has a mental health illness that inhibits their ability to make sound decisions relating to the children.

The Court will consider the reasons stated, but above all the Court will consider what is in the children’s best interests when making their final decision.

It’s important to remember that a bad spouse does not mean a bad parent, and just because you have separated you still need to act in the best interests of your children. Separation can be especially difficult when children are involved, if you need expert advice from a child custody lawyer or are looking for compassionate child support lawyers in Melbourne, get in touch with Robert Wood and Associates today. Call us on (03) 9762 3877 or contact us online now.

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