A Simple Guide to Know the Process When Applying For Full Custody of A Child
Applying for full custody can be tricky. The Family Law Act has nuances that can affect any case. We want to familiarise you with how it handles custody cases. This article explores how to claim full custody of your child.
Key takeaways
The Family Law Act 1975 governs child custody matters. The law assumes it’s in the child’s best interests for parents to have equal shared parental responsibility.
There are circumstances where one parent may seek an application for sole parental responsibility, also known as ‘full custody’. This can be achieved either by agreement between the parents or through a court order.
Parents can organise their agreement on parenting arrangements with a ‘parenting plan’ or apply for a ‘consent order’ from the Court.
One parent may object to the other parent having sole custody. The parent seeking sole custody must apply to the Family Court for parenting orders. The Court considers various factors, with the child’s best interests paramount.
Legal support is essential. Don’t face the complexities alone.
Full custody can be arranged through informal agreements, a consent order or a parenting order after a court hearing.
Equal shared parental responsibility
What is ‘parental responsibility’? Under the Family Law Act, parental responsibility is the parents’ duties and authority over their children. The law believes it’s in the child’s best interests for parents to have shared equal parental responsibility. Both parents should contribute to significant long-term decisions about a child’s upbringing. These decisions may include education, health, and religion.
How to get sole parental responsibility?
However, there are circumstances where one parent seeks sole parental responsibility. This can be organised in two ways: by agreement between the parents or through a court order from the Family Court.
When parents agree on parenting arrangements, they can organise their agreement with a ‘parenting plan’. They may also apply for a ‘consent order‘ from the Court. A parenting plan sets out parenting arrangements in writing. It’s not legally enforceable. However, it may have legal implications for future orders. A consent order is a written agreement approved by the Court, making it legally binding.
Family Court proceedings
One parent may object to the other party having sole custody. The parent seeking sole custody must apply to the Family Court for parenting orders. The Court will consider various factors, with the child’s best interests paramount. A parenting order will only grant sole parental responsibility if it’s in the child’s best interests.
The Court prefers not to order sole parental responsibility. It must be satisfied there are reasonable grounds to do so. The Court believes that children benefit from a meaningful relationship with both parents. However, this is only appropriate if it’s safe. The primary considerations made by the Court when determining if shared responsibility is appropriate are:
Any history of family violence, abuse or neglect of the child.
Any family violence orders applied to the child or a member of their family.
How to apply for full custody
Let’s look at the actual steps involved in seeking full custody of a child. There are different ways to organise full custody. Generally, the best way to organise parenting arrangements is by agreement. Agreements can be informal or legally binding.
Verbal agreement
Verbal agreements offer the greatest flexibility when establishing custody arrangements. However, they can also cause the most problems if the agreement fails. Typically, you’d only want to rely on a verbal agreement if the ex-spouses remained on good terms after separation. Here are some factors to consider.
Flexibility
Verbal agreements can suit changing circumstances without updating a formal document, which can be a good and bad thing. As long as you’re both understanding, this can make custody simpler to handle. However, problems can be difficult to manage, and the issues may require court intervention.
Communication
For a verbal agreement to work, the parties need excellent communication. The other parent must be informed as soon as possible before making changes. If conflicts crop up, have resolution methods in place. If problems start becoming too much to manage, it may be time to create a written agreement.
Written parenting plan
A parenting plan isn’t legally recognised under Australian family law either. However, it does offer a more concrete organisation. Even though it isn’t legally binding, treat it like a legal contract. If you agree to changes, make sure the plan is updated to incorporate them.
Visitation
Sole child custody doesn’t mean that one parent won’t see their child. Visitation rights should be considered as giving a child the chance to develop a good relationship with both parents is important. The specifics of the arrangement depends on your circumstances. A parent may visit the child on a weekly basis, or during special occasions like birthdays or holidays.
Decision-making
Custody doesn’t just relate to living arrangements. It also encompasses how you will make major decisions over a child’s life. This includes how you will manage the child’s education, medical needs, religious and cultural instruction, etc. With full custody, one parent may have responsibility for all major decisions, or for specific areas. For example, one parent may take responsibility for dictating a child’s educational needs.
Formalising the agreement
Once you’re happy with how the agreement has been drafted, both parents should sign the agreement and keep a copy.
Consent order
Consent orders are recommended for most co-parents. They provide the security of legal enforceability while encouraging cooperation between parents. If you’ve settled on full custody, here’s how to apply for a consent order.
Step one: Seek legal advice
Family lawyers will help you understand your rights and responsibilities under the Family Law Act. Some people may forego professional help to lower costs. Over 70% of self-represented litigants cite cost as their main reason. However, Family Court research estimates that around 80% of these litigants would have benefitted from representation. Why take the risk? An upfront legal fee will save you future headaches.
The Family Court has amended processes to ease self-representation. The reality is still that self-represented parties have a statistically lower success rate. Preparation is key. Save yourself the worry and find a good lawyer.
Step two: Fill out the application form
The application form is on the Federal Circuit and Family Court of Australia website. You may opt to have a lawyer fill out the application form in consultation with you, or use the Do-It-Yourself kit.
If you’re using the DIY kit, carefully read the instructions at the top of the form. The first sections will ask for basic personal information and the details of any existing court orders. Question 14 will ask if one parent will have sole responsibility for all major decisions, certain major decisions, or will opt for joint decision-making. Question 14A asks if the child will spend time with both parents. Provide a reason for your choice.
The next part of the application will ask for essential information about the children involved in the consent order. You will then need to detail how significant parenting considerations will be handled. This includes the children’s living arrangements and decision-making around education, health and other major issues.
Question 25 requires the applicant to certify that there are no allegations or risk of child abuse. After completing this section, both parties sign the Statement of Truth.
Step three: Submit the application
File the completed application electronically through the Commonwealth Courts Portal. If you’re unable to eFile, you can file the application in person at a court registry.
Parenting order
Sometimes, there’s a dispute over full custody. In these cases, the Court can make sole child custody arrangements through a parenting order. The parenting order process is more involved than consent orders.
Step one: family dispute resolution
The Court requires parties seeking parenting orders to work with a family dispute resolution practitioner first. The Australian family law system wants to encourage parents to cooperate as much as possible. If the parties make a genuine effort to resolve their differences, the practitioner will provide a certificate that can be attached to the application.
Under the following circumstances, a party may be exempt from this requirement:
There’s evidence one party has committed abuse of the child.
There’s evidence one party has committed family violence.
There’s a risk of child abuse if the proceedings were delayed.
There’s a risk of family violence by one of the parties to the proceedings.
Step two: Complete an Initiating Application form
Unless you’re seeking financial orders simultaneously, focus on the sections related to parenting orders. You can also apply for interim orders with this form. Parties may wait for up to 12 months for final orders. Interim orders are a temporary solution that are in effect until the Court grants final orders. Include an affidavit with evidence supporting your case for an interim order. Some interim orders you can seek include:
The allocation of sole parental responsibility to one parent regarding major decisions.
Restricting a party from moving a child interstate.
Establishing a child’s living arrangements.
Once the application is completed, you can eFile the application along with the necessary supporting documentation, including:
Genuine Steps Certificate from a family dispute resolution practitioner.
Notice of Child Abuse, Family Violence or Risk that reports any incidence or risk of abuse or domestic violence from substance abuse or other concerns.
Parenting Questionnaire.
Step three: Serve the application
Once you’ve submitted all required documentation, you must serve your former spouse. Service should include:
The Initiating Application.
The Parenting Questionnaire.
The Notice of Child Abuse, Family Violence or Risk.
The respondent will have the opportunity to provide a Response to an Initiating Application if they wish to dispute the parenting order. This response must be served on the original applicant.
Step four: Attend the court hearing
You won’t necessarily need to attend a hearing in person. You could connect over the phone or through a video conference. Parties can speak to evidence for their case and refer to testimonies from witnesses. The Court will decide based on the evidence provided if it’s in the child’s best interests to be under the full custody of one parent.
Conclusion
Applying for full custody involves establishing sole parental responsibility of a child. Sole parental responsibility can come by agreement or through a parenting order from the Family Court if the other parent objects. It’s a complex process that benefits from the assistance of a family lawyer.
Shanahan Family Law will help. We are experienced with child custody cases. We can ensure you understand your rights and obligations. Take the guesswork out of family law. Here’s a word from one of our clients.
The most amazing and professional team who really understood my plight and fought for me and my daughter and won.
– Jayne Taylor
If you need help with family law matters, contact us for a free discovery call.
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