If you are going through a separation or divorce and there are children involved, it is important to be aware of how the Australian family law applies to your situation and what the custody rights for mothers are.
The Family Law Act 1975 makes no assumptions around parental roles; it states that children have a right to a meaningful relationship with both parents, as long as the children are protected from harm. As such, when making decisions around custody rights for mothers, the court will consider what is in the best interests of each child.
If you cannot come to a parental agreement outside the court, you will need to apply for a parenting order through the family court. This is a set of orders which outlines the parental arrangements for a child and are legally binding. There are a number of pre-action procedures you must do before applying for a parenting order, such as going to a Family Dispute Resolution Conference.
Important concepts to know
There have been several changes to custody rights for mothers since 1975. Some of the things you should know are:
Changes to key terms
Whilst custody rights for mothers is commonly understood as referring to where a child lives, the 2006 Family Law Amendment places emphasis on equal shared parental responsibility. This means that rather than focusing on sole guardianship, phrases like who the child will ‘spend time with’ and ‘live with’ are used instead.
Both parents have responsibilities
Regardless of whether the parents were ever a couple, both parents have equal care and financial responsibilities for their children. Responsibilities include making decisions in their children’s welfare, such as deciding where they will go to school. Adoptive parents have the same entitlements as biological parents.
Time allocated may not be equal
Despite equal responsibilities, the court cannot guarantee a 50/50 split in parental time spent with children. Time allocation depends on numerous factors. However, if custody rights for mothers are not equal, the court must guarantee ‘substantial and significant’ time for the parent who has lesser time.
Parental entitlements can be revoked
The safety and best interests of the children remain paramount. If a parent has a history of domestic abuse, neglect or sexual assault, their entitlements may be revoked and sole guardianship may be given to the other parent.
Factors considered in the child’s best interests
There are a number of factors that the court considers when determining what is in the best interests of a child. The factors listed in the Family Law Act are:
The wishes of the child
The court will consider a child’s wishes when making their decision. They will give weight to factors like the child’s age and maturity level as these may affect the child’s perception of the situation.
Relationship to parents
The court considers the history and nature of the relationship between the child and each parent as an important factor when deciding on custody rights for mothers.
The impact of change
The extent to which changes to the child’s circumstances could affect them is also considered. This includes things like the effects of moving houses and schools, and the effects of separation from a parent or other family member.
Practical difficulties which could result from parental arrangements, such as financial expenses or education and lifestyle obstacles as a result of distance are also assessed with custody rights for mothers.
Parental abilities and attitudes
Each parent’s ability to provide for the child is considered by the court when deciding on custody rights for mothers. Each parent’s demonstrated attitudes and dedication to supporting their child are also taken into account.
History of violence
A history of family violence will also be considered by the court.
The court may consider any other factor they deem as relevant to the case.
The Australian family law is gender-neutral, which means that custody rights for mothers are the same as they are for fathers. The amount of time you will get with your children depends on a number of factors. It may be a good idea to get legal advice to better understand how the laws specifically apply to your case.