When a couple divorce and there are young children involved, child custody arrangements need to be figured out. Some of the questions that need to be answered include: how will time with the children be split? How will holidays be organised? How will decisions about the children be made? The separated parents can sort out their own arrangements, but what happens when they can’t agree and it gets ugly?
The Family Law Act outlines how parents are to proceed in determining child custody or parenting arrangements. But let’s take it back even one step further to understand better what parental responsibility is. Having an understanding of and willingly undertaking this task with the child at the centre should then help in the process of deciding on parenting arrangements.
What is Parental Responsibility in Relation to Child Custody?
The Family Law Act says that parental responsibility “in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” A seriously important thing to note here is that this definition is only given in the context of an Act which is child-centred. Although the parental responsibilities are spoken of in general terms, we understand that the adult should act like an adult and promote as best they can the physical, mental and emotional well-being of the child. The Attorney-General’s Department says: “The Family Law Act 1975 focuses on the rights of children and the responsibilities that each parent has towards their children, rather than on parental rights. The Act aims to ensure that children can enjoy a meaningful relationship with each of their parents, and are protected from harm.”
I’m doing what’s best for me. . . I mean, my child.
Unfortunately, there are too many child custody cases where the focus of the separated parents (or sometimes just one half of the equation) is on the rights of the parent. They may not use that language and in fact may couch all of their concerns within the framework of ‘what’s best for my child’, but their public actions and private manipulations speak very clearly an opposing message.
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Although parents spending $500,000 on a child custody disagreement is an astounding fact by itself, what is even more shocking is the outright “emotional manipulation” of the child (Penny) at the centre of the case. The case was heard over 36 days (a length more common for a criminal hearing) in the Ontario Superior Court of Justice by Ontario Superior Court Justice Alex Pazaratz. “What will it take to convince angry parents that nasty and aggressive litigation never turns out well?” Pazaratz wrote in a recent follow-up to that ruling in which he awards Penny’s father Davis Jackson $192,000 in costs. The judge lambastes the parents for having “squandered” money that could have been benefited their now eight-year-old daughter. “Most troubling was the persistent psychological campaign the (mother) embarked on,” the judge wrote in awarding Jackson custody. “The mind games she has been playing with her daughter cannot be allowed to continue.”
Eileen — the mother — would tell Penny “bad things are going to happen to mommy” when she misses her, would do everything in her power to prevent happy visits with the father and say “daddy doesn’t love you” and left her for a new family. Adults around Penny testified that she had headaches and often felt ill, even vomiting from stress or soiling herself before being taken to swap from one house to another. Before a school Christmas party, one teacher asked her why she seemed so upset. “Mommy and daddy were both going to be there and they were going to argue or fight,” a teacher recalled the then-six-year-old saying.
Pazaratz noted that, most of the time, Eileen was a very good mother, but was also “overt, manipulative, scheming, deceitful and oblivious to the needless family suffering she perpetuated for at least the last three years.” Her perceived needs were obviously overshadowing what was best for Penny.
Such cases can be harmful to the psyche of the kids involved. “Parents completely underestimate” the effects of acrimonious custody squabbles,” says Dr. Marshall Korenblum, chief psychiatrist at the Hincks-Dellcrest Centre. “It can be extremely detrimental. . . Divorce and separation itself is not a bad thing for mental health. It’s when there’s a high-conflict or a protracted battle or lots of anger… that it has a negative effect on mental health.”
Parenting Arrangements and Parenting Orders
Parenting orders are only given by the court about parental responsibilities if the separating parents cannot agree on the arrangements for their children. In Australia, a mediation process must be adhered to before you can be heard in court. It is much better for all concerned if parenting arrangements can be agreed upon without going to court. It costs less money, time and is kinder emotionally. Together, the parents work out a parenting plan which is a written agreement that sets out the parenting arrangements for their children. Because it is worked out jointly, you do not need to go to court.
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But the reality is not all divorced parents can agree on child custody arrangements. If this is the case then at least one of the parents needs to apply to the court for parenting orders and the court will decide what those orders will be. There are primary and secondary considerations taken by a court in deciding what is best for the child. The primary considerations are:
- The benefit to children of having a meaningful relationship with both parents.
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
- The Court is required to give greater weight to the consideration of the need to protect children from harm.
The secondary considerations involve a whole range of areas which are examined – all of which concern making a decision about parenting orders which consider the best interests of the child.
Our family lawyers assist our clients to finalise the living arrangements for their children, focusing always on the best interests of the children. We recognise the importance of children maintaining a relationship with both parents after a separation occurs, and we have the expertise to assist parents in reaching agreement about the parenting arrangements for their children. If you would like to talk to one of our family lawyers we offer a free, 10-minute phone consultation. Please contact us today!