WILL THE COURT APPROVE MY CUSTODY AND VISITATION SCHEDULE?

Your child custody and visitation schedule is important to you and your child. Since 2006 the Family Law Amendment, or Shared Responsibility Act 2006 sets out the requirements for complying with federal laws regarding custody and child visitation. Knowing the law will assist you in creating your child visitation schedule that will be acceptable to the Court.

In this article, we will look at the basic principles applicable to custody and child visitation and provide tips on how to draw up your visitation and custody schedule.

The Court Is More Likely To Approve Your Custody And Visitation Schedule If It Is In The Child’S Best Interest.

The Australian Courts will always consider what best meets the child’s needs. There is no “standard package”. Each family has its own needs and considerations. You and the other parent must work together to create a schedule, granting both parents appropriate visitation, that is in the best interest of the child.

Family Law aims to create a situation where the child can develop or maintain a meaningful relationship with both parents, and each parent can be involved in the child’s life despite living separately.

What Type Of Visitation Would The do Court prefer?

The Family Law Amendment Act emphasizes that children should spend equal time with their parents, and if not equal time, then substantial and significant time. Equal time seems easy to define, but what does “substantial and significant time” mean?

Section 7 of the Family Law Amendment Act provides as follows:

The concept of substantial and significant time is defined in (65DAA) to mean:

• (a) the time the child spends with the parent includes both:
• (i) days that fall on weekends and holidays; and
• (ii) days that do not fall on weekends and holidays; and
• (b) the time the child spends with the parent allows the parent to be involved in:
• (i) the child's daily routine; and
• (ii) occasions and events that are of particular significance to the child; and
• (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

In summary, if you want the Court to approve your visitation and custody agreement your schedule should include regular weekdays, special occasions, or important events, and holidays. These include special occasions that are significant to the child as well as to each parent. Each parent needs to spend time with the child under various circumstances.

The Court feels that joint custody encourages parents to equally share responsibility for their children. The Court, therefore, prefers to award joint custody, both physically and legally, whenever possible, and if in the child’s best interest. As long as there are no circumstances that would put the child in danger, such as violence or other abuse, the Court will consider joint custody to be in the child’s best interest. Thus achieving the aim that the child will develop a meaningful relationship with both parents.

Joint custody does not necessarily mean equal time with both parents. It means that the child will spend such time with each parent, that he or she can have frequent and generous contact with each parent and spend appropriate time together.

Sole custody can still allow for frequent visitations with the non-custodial parent unless the Court finds that the parent could be a danger to the child.

So, as long as it is in the child’s best interest, the Court wants to see generous visitation time with both parents, regardless of whether your schedule is based on joint or sole custody.

What should you include in your custody and visitation schedule if you want the court to approve your schedule?

 Your schedule should include 3 elements:

Standard schedule

What times and days will your child spend with you and the other parent?

This deals with normal days and can include full days or a few hours, depending on what works best for your child. It should be repetitive, consistent and regular, creating a routine. It does not deal with special holidays or out of the ordinary events.

Holidays

It is important to include special times in the visitation schedule. Special occasions and holidays create memories and traditions. Include occasions like your child’s birthday, Mother’s Day, Father’s Day, or any special occasion for your family in your schedule. This creates opportunities for your child and both parents to celebrate together, have fun together and make memories.

Plan for the whole year, so that everyone knows and can plan. You can alternate holidays from year to year.

Vacations

Include school vacations, or any other breaks, in your custody schedule. Deal with known vacations so that everyone knows when, where and for how long. Also, have a plan of action for vacations that might arise during the year. Let the other parent know well in advance and so on.

Factors The Court Will Consider To Determine The Child’S Best Interest For Visitation And Custody

 The Court will evaluate many questions when deciding if the visitation schedule is in the child’s best interest.

• Is there a history of violence or abuse?
• Will one parent be a better custodian?
• Has one parent cared for the child more than the other?
• Will the child suffer emotionally or psychologically if separated from one parent?
• Are the parents able to communicate civilly with each other?
• Can each parent encourage the child’s relationship with the other parent?
• Does the schedule comply with the child’s wishes, if the child is old enough to offer an opinion?
• Are the residences close to each other?
• Is there a risk to the child’s safety and security at either residence?

The Court will see to it that the child’s best interest is met. If you want the Court to approve your custody schedule, create a schedule that benefits the child. Forget about past issues and your interests. The Court’s responsibility is to see to it that the child’s needs are met; it is also your responsibility to act in your child’s best interest.

Work With The Other Parent To Create A Custody Schedule

 As parents, you know your child best. It follows that you, as the parents, are best equipped to protect your child’s best interests. In fact, it is in everyone’s interest if you and the other parent can work together to reach a schedule that meets your child’s needs. If you cannot agree, the Court will do it for you, but it prefers to have the parents create a schedule that works for your family.

Set aside your differences if you and the other parent don’t get along. Focus on your child’s needs. Create a schedule that works for your child, your schedule and the other parent’s schedule. When you work together to create a schedule that serves your child’s needs and works for both of you, it is more likely that everyone will follow it. It is also more likely that the Court will approve your schedule if it protects your child’s interests and suits the family.