Child "custody" explained: How parenting arrangements are determined following a separation

Mother and daughter walking to or home from school. They are holding hands and both wearing backpacks.

Following a separation, parents or other interested parties often wish to know how "custody" arrangements for children are determined. This article discusses why the term "custody" is considered to be outdated, and explains the key concepts that are used in the current legislation to determine parenting arrangements.

What does "custody" mean?

The term "custody" is no longer used in the current legislation that governs parenting matters, the Family Law Act 1975 (Cth) (the Act). The term "custody" was removed from the Act in 1996 to avoid the implication that children are something to be "possessed" or "won", and to instead focus on the best interests of children and co-parenting.

What terminology does the Act use now and what does it mean?

Instead of "granting custody", the court will now make "parenting orders". "Parenting orders" is a broad term that encompasses a variety of decisions that can be made with respect to children, including who a child lives and spends time with, who is able to contact and communicate with a child, and who has the ability to make decisions for a child. Parenting orders can be applied for by the child's parents, the child, a grandparent or any other person connected with the care, welfare or development of the child.

The Act also no longer refers to having "access" to children. These types of decisions are now referred to as orders that a child "live with" and/or "spend time and communicate with" certain people.

This is different from "parental responsibility", the other central concept that parenting orders deal with. S 61B of the Act defines parental responsibility to mean "all duties, powers, responsibilities and authority which, by law, parents have in relation to their children". A person with parental responsibility for a child is responsible for making "major long-term decisions" relating to the child, including the child's education, religious and cultural upbringing, health, name and any changes to the child's living arrangements that make it significantly more difficult for the child to spend time with one of their parents.

Court orders may provide parents with joint or sole decision-making authority in relation to specified major long-term issues. This means that one parent could have sole decision-making responsibility in relation to certain types of decisions (e.g. schooling) and the parents otherwise share decision-making regarding all other major long-term issues (e.g. health, religion).

In the absence of any court orders to the contrary, each parent of a child under the age of 18 has, by default, parental responsibility for the child. This remains the case regardless of whether the parents have separated, or whether they have re-partnered.

This article provides further detail regarding the concept of parental responsibility.

Does my child have a say in how parenting orders are determined?

A child's views are one of several factors that may be considered by a court when determining what parenting arrangements are in the child's best interests. A child's age, maturity and level of insight and understanding will likely affect how much weight will be given to their views. For example, the views of a mature teenager will likely be given more weight than those of a young child.

There are two key ways in which a child's views can be obtained in parenting proceedings. A child's views can be brought before the court through family or child impact reports, prepared by an independent third party (usually an experienced social worker or psychologist) who examines the dynamics of a co-parenting relationship and makes recommendations intended to promote the child's best interests. A child's views may also be obtained through an Independent Children's Lawyer, who can be appointed by the court in cases involving significant risk factors or complex issues (including abuse, neglect, high conflict between parents, family violence, mental health issues or where there are allegations made as to the views of a child) and where the child is of a mature age to express their views.1 Following recent legislative changes, Independent Children's Lawyers are now required to meet with the children they represent, unless the child is under the age of five or has expressed a wish not to meet with the Independent Children's Lawyer.

This article provides further information regarding how a child's views may be considered when making parenting orders.

Parenting orders, best interests and "custody"

Making "parenting orders" (formerly referred to as "granting custody") requires judges to consider the best interests of the child when determining the key issues of parental responsibility and who a child lives and spends time with. While every parenting matter is unique and may give rise to a variety of issues, such as relocation, unacceptable risk and how and when final parenting orders can be reconsidered, the guiding principle and paramount consideration is always what is in the best interests of a child. So much is clear from the terms of the Act, including the deliberate removal of the term "custody".

1 Federal Circuit and Family Court of Australia: Independent Children's Lawyer

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.