Family Law matters involving children can be horrible, for both the parents, and the children. There is no more an emotional issue for some people who separate, than resolving who the children are to live with, or when they will spend time with the parent they are not living with.
It is so easy to use the Family Court, and the children as a form of emotional blackmail or as a form of punishment against the former partner.
What a lot of people tend to forget, is that the children have done nothing wrong. They are not the reason the relationship has ended. At Family Law, the children are entitled to see both parents, unless there is a real risk to their welfare.
How you and your former partner deal with the issue of where the children live, and how often they see the other parent, at the end of a relationship, can have a huge impact on the children. If handled badly, it can have a really bad affect on the children.
Sure, there are times, when a former partner should be restricted in seeing the children, especially if there are issues of violence or some other risk. However, unless these risks are real, there should be no attempt to restrict the children seeing either parent.
WHEN YOU FIRST SEPARATE
When you first separate, at Common Law, both you and your partner are entitled to have the child or children live with either of you, and if one of you decides to not let the other see the children, in the absence of any Family Law Court order, there is no law being broken.
However, it is not advised that you stop the other parent seeing the child or children, unless there are real issues with their safety. Also, there is no surer way to have it end up in a Family Law Court if one of you decide that the other parent is not to see the child or children.
It should be remembered, that it really is in the best interests of you and the children if you and your partner can agree on Family Law orders, detailing where the children live and how often the other parent spends time with the children.
Don’t forget, you will have contact with your partner the rest of your life, through the children. So a hard line stance now on Family Law issues about the children, might feel right, but the consequences of having to go to Family Law Court, and having to explain to the Family Law Court and the children why they can’t see the other parent, especially if there is no real reason, might be a little harder than you expected.
However, it may just be that you can’t agree.
It happens!
WHAT ORDER WILL A FAMILY LAW COURT MOST LIKELY MAKE?
A Family Law Court in deciding on the issues of where the children reside, and how much time they spend with the other parent, has to consider what is in the children’s best interest. The Family Law Court if it has to, will make an order called a parenting order, which covers one or more of the following:
- the person or persons with whom a child is to live;
- the time a child is to spend with another person or other persons;
- the allocation of parental responsibility for a child.
The factors in considering best interests of a child are quite wide, but subject to deciding what is in the best interests of the child, if the Family Court has to make the decision, the most common parenting order to be made by the Family Court will be that the child or children will end up with the parent who has been the primary carer, throughout the relationship, especially if they are young.
There are other issues, such as schooling, how long the children have lived in the area where that parent resides, and other factors dealing with the children’s welfare which the Court will take into account if it has to make the decision.
The other parent, provided there is no risk to the children’s welfare, and, in the absence of any other good reasons not to, will be allowed to see them regularly. Every second weekend, and half school holidays is not an unusual order. The Court may do some fine-tuning, but, it won’t be much different.
Drake & Associates can advise you in regard to all of these issues . Call now.
SHARED PARENTING?
It should be noted that there now is a tendency by the Courts, to consider a shared parenting arrangement, provided it is practical, and the parents do not reside too far apart.
The age of the children is important. If the child is under school age, it is less likely that the Court will agree that a parent who is employed full-time, should have a shared arrangement with the other parent who is available 24/7 to look after the child.
It is not impossible, but it will be extremely difficult to convince a Court that such a parenting order should be imposed.
A TRAP TO BE AWARE OF!
Sometimes, either parent or the Court itself, once proceedings have started might seek the appointment of an Independent Legal Representative (ILR) for the children. Usually, this will occur when the children are quite young. This means the children will have their own legal representative, usually a Legal Aid Solicitor.
This can sometimes complicate the matter. If you and your former partner reach some agreement for a parenting plan or order, as the case progresses, the ILR might oppose this parenting order. If the Court accepts the objections of the ILR, you will most likely be locked in to continuing, when all you want to do is finish it.
The only way out then is for both parents to discontinue the applications they have lodged in the Court. This may not be possible, and, ultimately, may not be the best course of action.
Also, the ILR is not free. You will be required to pay a fee to the Legal Aid Commission, unless you are legally aided, or otherwise entitled to an exemption.
Think very carefully before getting involved in a disputed Family Court matter about the children. More often than not, even though Family Court proceedings have started, the matter is resolved by reaching agreement, and the Family Court will not have to make any decision.
Call Drake & Associates now for an appointment to obtain the advice you need to help you make your decisions.
FINALLY
If at all possible, you and your partner should try and agree on the residence and time spent by the other parent with the children. Once agreement is reached, you can lodge an Application for the Agreement to be approved by a Family Law Court, if necessary.
A Family Law Court will normally approve such applications with little formality, and indeed no appearance by either party.
If you can’t reach agreement, you will most likely end up in the Court, and that will not be fun.
This is just the basic information, on Family Law children issues. The things you need to think about in the early stages.
If despite your best attempts, you cannot resolve the issues, and you have to go to Court, or, if you want to have Consent Orders made in regard to the children, call Drake & Associates for the right advice and legal representation.