Studies have shown that it is high levels of conflict between the parents, and not the divorce itself, that has the worst negative impact on the children. Children may feel insecure, alone, unsafe and fearful of the future.
They find dealing with conflicting loyalties very difficult and often feel responsible. If you sense that your child is suffering, be available and attentive. Ask yourself, are the post-separation arrangements in your child’s best interest? What can you do to restore a supportive and secure environment for your child? If needed, consult a professional.
Children do not have the emotional or cognitive ability to deal with the responsibility of what is in the best interest of the child. You, as the parent, must decide that. Child-centred parents will take the views of their children into account. They will seek to value the child’s relationship with the other parent. They will re-arrange their own activities when considering the best possible parenting arrangements.
Make time and energy available to help your child understand what is going on. Listen to your child’s feelings and opinions. If your child is more comfortable expressing him/herself with a non-parent, provide the opportunity for your child to speak with a friend, a relative or a counsellor. Whoever speaks with the child must be on the child’s side. They must listen, rather than tell.
The Family Law Act provides a framework within which the court will determine the child’s best interest when deciding on parenting orders. It will ensure that
These aims provide important guidelines for both the court and the parents in determining “best interest” of the child. In considering parenting orders the court will evaluate whether the parent is trying to uphold these principles, regardless of the dispute between the parents, or whether achieving this might be difficult.
The law has been amended over the years to shift the focus from parental rights to parental responsibilities and children’s rights. The aim is to move away from the notion that children are “assets” and to encourage the responsibility of shared parenting. If your case reaches the court, use of the current terminology will indicate respect for the focus on children’s best interest and parental responsibility.
In deciding on parental orders the court’s starting point will be the presumption that it is in the child’s best interest for the parents to have “equal, shared parental responsibilities” (e-s-p-r). The presumption will not apply if there are reasonable grounds to believe that the child was subjected to family violence or abuse by the parent (or a person living with the parent).
The presumption can also be rebutted by evidence that e-s-p-r would not be in the child’s best interest. In deciding whether to make an e-s-p-r order the court must consider the “reasonably practicable” and “child’s best interest” considerations to decide on time spend with each parent. The court might instead order that the child spends “substantial and significant time” with each parent if equal time is not reasonably practicable.
An equal shared parental responsibilities court order requires that both parents must consult each other and make a genuine effort to reach joint decisions about major long-term issues in relation to the child. This includes issues relating to education, religion, culture, health, name and changes in the living environment that make it significantly more difficult for the child to spend time with a parent.
The best interest of the child will always be the court’s paramount consideration for deciding parental orders. It might not necessarily be the same as your own idea, but you and your partner may then focus your efforts on reaching a private agreement that would suit your own family specifically. You can, however, be held retrospectively accountable if there is litigation at a later stage.
In deciding “best interests” of the child the court will take many considerations into account.
The primary considerations, or “twin pillars”, are:
Additional considerations to consider are:
The court is allowed to use its discretion to consider any fact that may be relevant in determining “best interest” of the child.
There is no set formula of arrangements for parenting after the separation. It is a matter of what suits the particular child in the particular circumstances of that case. Case law is firm that each parent has the duty to actively promote and facilitate the relationship between the child and the other parent.
It might be difficult to come to terms with different standards of care, different values and routines at the other parent’s house. If the child’s welfare is being compromised, it may be possible to negotiate solutions or, if necessary, approach the court for a new order. If you are worried, be honest and examine whether it is possible that your concerns arise from a desire to control the care of the child, or your own negative feelings about the other parent. If the child adapts and is not negatively affected by it, you have to learn to let go.