Here's what you need to know about divorce and child custody

Rose Lawyers on 13 September 2018

A divorce is the legal end to a marriage. The requirement for divorce is that you must demonstrate the 'irretrievable breakdown' of your marriage. You must also show that you and your partner have been separated for a 12 month period without any possibility of you getting back together. This is usually proven to the Family Court with Affidavit evidence.

You don't necessarily need to live in a different home to your partner to show that you are separated, and some couples do live in the same home after separation while co-parenting their children.

No matter your particular situation, going through a divorce with children involved is never easy, but Rose Lawyers are here to help to ensure that at least the legal side of things is smooth.

Call our friendly and professional divorce lawyers Melbourne today on 03 9878 5222 for a 15 minute obligation free chat about what you are hoping for with divorce child custody. We are on your side and are here to make complicated decisions in divorce easy to understand.

Divorce with children involved: how does it work?

Family Law dictates that decisions about child care after separation are made with the best interests of the child in mind. The law provides that children from divorced families should continue to have supportive and caring relationships with both parents and both sides of the family wherever possible.

  • After a divorce you may be able to agree on parenting arrangements with your former partner.

  • You might have difficulty agreeing on your parenting arrangements.

  • It may be unsafe for the children continue to see your former partner.

  • Extended family members may be involved in the long-term care of your child or children.

Caring for your children - what to consider

Each family is different, but it is important to reach an agreement with your former partner about future care for your children. You might be able to decide together, or you may need the Court to intervene. When you are thinking about arranging for future parenting and care you may want to think about:

  • How old your children are.

  • Whether you want to divide care with your former partner equally, or if one parent wants to take on greater responsibility.

  • Establishing a new and consistent routine as soon as possible.

  • How much notice you need to give the other person when changing a child's routine.

  • What kind of relationship children have with grandparents and extended family.

  • Who will look after children on holidays.

There are also a range of other factors to consider, like how to ensure your child can continue to enjoy their culture, and how to keep your children engaged in their sports and recreational activities. Also, if one parent is looking to move away following a split, it is important to confirm this before any decisions are made. The Court may need to get involved if you cannot reach an agreement about a person moving away.

custody of child after divorce

Parenting arrangements after separation

There are a number of different arrangements that can be put in place to confirm how you will care for your children after your separation. We have gone through a few key possibilities here to make it easier to understand your legal position.

You agree on parenting arrangements

In some cases, both parents can agree on how best to care for their children in the future. If this is the case, you do not need to go to Court to arrange care for your children, because you can make a parenting plan. Alternatively, you can seek a Consent Order from the Court.

Parenting plan

This is a written agreement which you can work out with your former partner.

  • You agree on how your children should be cared for in the future.

  • You can work out a plan with your former partner.

  • A parenting plan is not legally enforceable and is different from a parenting Order (which is made by a Court).

Consent Order

When you have agreed on parenting arrangements, you can put your agreement into an Application for a Consent Order and then ask the Court to make this Order. A ConsentOrder can cover not only how you will care for your children, but also how financial matters may be taken care of.

  • Any person concerned with the care and welfare of a child can apply for a parenting Order

  • An Order will be made in the best interest of a child

  • The order has legal effect which means it is legally enforceable

You do not agree on parenting arrangements

In some cases parents cannot agree about how to best care for their child or children. In this case, a Court can step in to make a parenting Order. Before you can get a parenting Order you will need to attend family mediation (unless it is unsafe to do so). Family mediation can help both parents to reach a decision that they are both happy with.

Parenting Order

This is a Court-ordered decision which outlines parenting arrangements for a child or children. A parenting Order will outline the following:

  • Who children will live with, both now and in the future.

  • How much each parent has to do to care for the children.

  • How much time children will spend with a parent they do not live with.

  • Any aspect related to the care and welfare of children.

custody divorce with children

How to start the conversation about custody

While you might be feeling a range of emotions, it is helpful if you can talk to your former partner about child parenting arrangements in a productive way.

  • Put your feelings to one side and discuss the facts. While you may be hurt, frustrated or angry, it's likely these emotions are not going to move your child custody discussions forward.

  • Be respectful and try to avoid talking too much about what is happening with your divorce or separation on social media.

  • Put your children first when making decisions. Take the time to talk to your partner reasonably, knowing that it is likely that they also want the best for your children.

  • Write things down and take some time to work out what you would like as a best case scenario. Sometimes you can speak to your former partner about a range of issues like property settlement and child care arrangements in one go. Consider your best outcome, and what the worst possible outcome could be - and then try to meet somewhere in the middle.

Call Rose Law for legal advice on your divorce

Going through divorce with children can be difficult, and it is important to protect the rights of your children above all else. We recommend consulting with Rose Law divorce lawyers Melbourne at the early stages of your divorce. This is so you can establish your rights and responsibilities early on and manage you and your former partner's expectations. This will hopefully lead to a smoother transition through this time.

Contact us today for a confidential and obligation-free discussion about your divorce child custody. We are here for you during what can be a difficult time. Call us on 03 9878 5222 today.