Separation cases in Australia are notoriously complicated and confusing. On top of the already complex nature of these cases, there are many misconceptions floating around about who is more likely to gain custody of the children in the event that the mother and father separate.
In fact, searching for father vs mother custody statistics would have you believe that mothers are entitled to sole custody of their child the vast majority of the time but this simply is not the case.
Each separation case is different.
The court will go through a set process before determining which parent receives custody of the child. While in most instances, most custody arrangements result in the children of separated parents spending most nights with their mothers, this certainly does not guarantee a mother’s right to custody.
In most instances, the Court would prefer the child to see their parents equal amounts.
Due to this being an extremely complex and case-specific area of law, it is strongly recommended that you seek the help of a qualified family law specialist before engaging in any legal pursuits.
You can book a completely free, zero obligation initial consultation with us today to see how we can help you in your family law case. We can inform you on the likelihood of who will gain custody of the child after separation and help you to the best of our abilities. Contact us today.
This article will look at some of the key questions we get in regards to a mother’s custody. If you are still with your partner and wondering how to get a divorce in Australia, or if you would like to know more about the property and financial division (link dead at time of writing) process in separation, just click through to our other resources.
What are a mother’s custody rights in Australia?
In Australia, the law does not favour either parent. Instead, the Family Law Act 1975 specifies that the courts must find an outcome that prioritises the best interests of the child. The courts must not start from a position that assumes that the child will spend more time with their mother or father, but instead of what is best for the child.
On top of this, the courts will take into consideration how the child feels about the custody arrangement and their relationship with the mother and father.
The law presumes that the child has a right to a relationship with each parent, and expects both parties to share an equal amount of parental responsibility.
It is important to remember that shared parental responsibility does not mean that each parent spends an equal amount of time with the child, only that there will be tangible responsibilities for each parent throughout the child’s upbringing.
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How does a mother get custody?
In order for a mother to receive sole custody of the child, they must refute the presumptions of shared parental responsibility and prove to the Court that it is not in the child’s best interest to spend time with their father. The most common way to refute these claims is to prepare an affidavit and compile evidence to show the Court.
Under Australian law, a child has the right to be protected from physical, emotional, sexual and psychological harm.
If the mother can prove that contact with the child’s father would subject them to experiencing abuse or being exposed to it in any way, then there is a significant chance that contact with that parent will be extremely limited.
Throughout the family law proceedings, it is important that the mother demonstrates that they understand the best interests of their child and will put their child before themselves in order to look after them.
Meeting these requirements would likely result in the mother having custody.
Immediately after separation, does the mother have custody?
The period immediately following separation is an immensely difficult time for any family. It is an emotionally challenging time and depending on how the relationship ended with your former spouse, you may not want to talk to them at all at this moment in time.
However, it is important that some temporary decisions are made in order to provide some sort of security and predictability for your family.
In Australia, there is no law that specifies if the mother gets custody immediately after separation.
Before attending court to receive a parenting order, it is up to the biological parents to determine who will retain temporary custody of the children until a permanent decision has been decided.
If the parents are unable to come to an agreement on if the mother gets custody or not, things can get quite complicated.
Seeing as there are no legally binding parameters in place, it is possible that one of the parents could take the children and deny the other parent access – however if the case does proceed to court, this will be looked on extremely unfavourably.
If the father has a history of abuse or drug use, sometimes denying him access immediately is the best thing for all parties.
However, if this is not the case, then the Court will take this into consideration when determining parental orders and it may not result in the mother’s custody being granted.
This stage of the process is extremely delicate, any adverse reaction can have huge ramifications down the line for your family.
What things affect a mother’s custody rights?
While it has been noted that the Court will primarily consider what the child’s or children’s best interests are when determining if a mother’s custody will be granted, it is not the only consideration.
In order to determine what would be best for the child or children, the Court will take a variety of factors into account.
- How the child or children feel about their mother and father
- How the child or children feel about the proposed custody arrangements
- How each parent feels about the other and whether they would encourage a relationship between the other parent and the child or children
- Each parent’s current lifestyle and workload
- If there is any evidence of family violence
- How each parent would be able to care for the child or children
- How each parent view their parental responsibilities
As always, each case is unique and there is no guarantee that a mother’s custody rights would be upheld if she failed to meet the requirements when considering each one of these factors.
Does domestic violence affect a mother’s custody rights?
As mentioned above, domestic violence plays a huge role in determining a mother’s custody rights. Everyone has the right to be safe and protected from abuse and feel safe within their home.
When determining who will receive majority custody of the child, domestic violence plays a massive role in determining the mother’s custody.
Protecting the child or children from any potential harm is an important consideration for the Court in determining whether or not a mother’s custody should be sole or shared.
It is important to remember that the Court is concerned with allowing the child or children to have access to a meaningful relationship with both parents, not necessarily a perfect one. A meaningful relationship is viewed as one that adds value to the child or children’s lives and has a significant impact on their upbringing.
A meaningful relationship could extend to one that includes only phone contact, or limited access with constant supervision. When considering these things, you have to remember that even if the father has committed family violence in the past, there is still a possibility that they could have a relationship with the child or children moving forward.
While parents would normally need to attend mandatory mediation when seeking court orders for parenting, it is not necessary in the event that family violence has taken place.
Can a child determine who they live with?
The Court will take into consideration how the child or children feel about the parenting orders before issuing them, so if a child has a strong dislike for their father then there is a chance that the father would be granted less time with the child or children.
Once the parenting orders have been issued, there is a possibility that the child or children start to dislike spending time with a specific parent. If that happens, the child or children can make the changeover process between the mother and father extremely difficult, refusing to go with whichever parent they dislike.
If this happens, it is within everyone’s best interest that alternative arrangements are sought. However, if one parent chooses to upheld the agreed upon parenting arrangement even if it is not tenable, then the matter will likely proceed to court.
Is it preferred that mother’s have custody?
There is no law that specifically states that mother’s should have sole custody of their child or children. In fact, the Family Law Amendment drafted in 2006 has been intentionally created in a way that removes any potential bias to gender.
While it is true that most mothers have a high level of involvement in their child’s or children’s lives, there is no specific law stating that mother’s custody rights are guaranteed.
It all depends on the specific factors of each case.
Does a mother have a right to see her kids?
Under Australian law, parents do not actually have a right to see their kids. They have obligations to look after them, but there is no specific law stating that parents have any rights in relation to seeing their children.