Children and Divorce

When you divorce your spouse, you are not divorcing your children. You are still a parent with all the obligations and responsibilities of parenthood.

Unless you have been abusive to your children, the legal system recognizes that you are still entitled to maintain a healthy relationship with your children. In fact, the principle that children benefit from having both parents involved in their lives is embedded in Australia’s Family Law Act. How you will make that principle work is one of the most important things you need to think about if you are contemplating separation or divorce.

This eBook discusses parenting after separation or divorce. It provides information about your rights and responsibilities as a divorced parent, about how the Family Law Courts resolve parenting disputes, and about steps you can take to resolve parenting issues without the court’s involvement. This eBook does not and cannot give you legal advice. It is intended as a general overview. Every family’s situation is different. If you have parenting issues that you and your spouse cannot resolve to your satisfaction, you should seek advice and representation from a family law lawyer.

Explaining your divorce to your children

People get divorced for many reasons. It is often the best decision for both spouses. It might also be best for your children, since living with two parents who do not get along with each other can be a stressful experience for a child. It is nevertheless important for divorcing parents to remember that their children come first. You should make your best effort to put aside the differences you have with your spouse so that you can agree on ways to minimize the disruption that divorce will have on the lives of your children.

Children often feel they are responsible for their parents’ divorce. One of the first decisions you need to make is whether you or your spouse, or both of you together, will explain to your children that you are separating or divorcing and your reasons for doing so. You should make your children understand:

• You both still love them and will continue to love them even when they are spending time with the other parent.
• The divorce is not their fault. Any arguments you have had with your spouse are not about your children. Whatever your reason might be for deciding to divorce, their behavior did not contribute to your decision.
• You understand and expect that they will continue to love both of their parents. You do not expect and do not want them to side with one parent against the other.
• They can speak honestly about their feelings without fear that they will hurt their relationship with you. Any anger or frustration they feel is normal and it will not affect your love for them.
• You want, and will always want, what is best for them, and you will each miss them when they are with the other spouse as much as they will miss you. At the same time, you will do everything you can to make their lives as normal and healthy as they were before the divorce.

It is natural for children to respond to bad news in a negative way. If your children experience a period of hostility or anger, if they appear to be isolated and do not want to spend time with one or both parents, or if they seem to fear being abandoned, do not be alarmed. If those behaviors continue after your children have had time to adjust, consider getting help from a community-based counselling service.

Reaching an understanding with your spouse

Whatever differences you have with your spouse, you should try to set them aside long enough to agree on some basic rules for interacting with your children. No matter how poorly you and your spouse are communicating, try to agree that:

• You will not argue in front of the children.
• You will not say bad things to the children about the other parent.
• You will not use the children to spy on the other parent.
• You will not try to get the children to take your side in any dispute with the other parent.
• You will not try to get emotional support from your children (thats what adult friends and therapists are for).
• You will recognize that the children need the equal love and attention of both their parents.
• You are both responsible for the well-being of your children.
• The kids come first.

Learning to be a divorced parent

It isn’t easy to be a parent and it is even more difficult to be a divorced parent. You need to be in a healthy emotional state if you want to be an effective parent. Do not be afraid to seek therapy or counselling to help you cope with your divorce. There are classes you can take to help you adjust to your new role as a divorced parent. A number of helpful resources are available on the internet. A good starting point is Me and My Kids: Parenting from a Distance, published by the Department of Human Services in partnership with the Child Support Agency and the Family Court of Australia.

It is not unusual for parents to feel guilty about the impact their divorce has on their children. Some parents respond to those feelings by thinking “my kids are better off without me.” It is important for your sake as well as your children’s for you to get past those feelings. Even if your children are with their other parent most of the time after you separate or divorce, it is important that you maintain a good relationship with them. You can do that by:

• Sticking to any agreement you make with your spouse about the days and times you have contact with your children. If missing a meeting with your children is absolutely unavoidable, do what you can to reschedule it. Children begin to doubt your love if you promise to see them and repeatedly break that promise.
• Talk to your children on the telephone regularly in between visits.
• Show an interest in your children. Find out what they are doing in school. Read their assignments and help them with their schoolwork. Attend sporting events, plays, or other activities in which they participate. Ask them about their friends.
• Keep them up-to-date on your own life. Within reason, tell them how you spend your days and nights. Make them a part of your life.
• Adapt to their needs. Older kids need to spend time with their peers. They might want to miss an occasional meeting with you to do something special with their friends. Let them know you understand and support their reasonable desires.
• Arrange for your children to spend time with grandparents or other relatives with whom they have formed an attachment.
• Do not forget their birthdays or other special occasions.

Your responsibilities as a divorced parent

You have a legal obligation to assure the safety and well-being of your children. Separating from a spouse does not change that. Neither does divorce. Even remarriage does not end your responsibility for your children. Only a court order can alter your duty to your children.

Unless a parent abuses the children or creates a risk of family violence, Australian law presumes that parents should share parental responsibility equally. It is presumed that parents should make decisions jointly that affect a child’s welfare, health, or education. That presumption relates to your responsibility to your children, not to the amount of time your children spend with each parent.

While it may be ideal for a child to spend equal time with each parent, it is not always practical and it may not always be in the child’s best interest. If parents live some distance from each other, a child’s need to attend school, to engage in after-school activities, to spend time with friends, and to live in a stable environment might require that the child spend more time in one parent’s residence that the other’s.

Parenting plans and consent orders

Parents are encouraged to reach agreements with each other concerning parenting issues, using the court as a decision-maker only as a last resort. Those agreements should consider where the children will live, when they will have contact with the other parent, the nature of that contact, and how the parents will communicate with each other to make decisions about the children. Informal agreements made by parents can be expressed in a parenting plan.

A family counsellor or a family dispute resolution practitioner can help parents make a parenting plan. The role of those advisers is discussed more fully in Family Dispute Resolution (Mediation), an eBook in this series.

At one time, parenting plans were registered with the court. The current practice is to ask the court for a consent order if parents want to make their agreements enforceable. The Consent Orders eBook in this series gives you more information about the purpose of consent orders and how to obtain them.

Parenting orders

You do not necessarily need a court order if you and your spouse can agree upon the best way to parent your children after separation or divorce and if you both abide by that agreement. If you can agree but want a court order so that you have a way to enforce your agreement, you can apply to the court for a consent order. If you cannot agree, you can apply to the court for a parenting order. Before applying for a parenting order, you will probably need to follow the pre-action procedures discussed in Preparing for Separation and Divorce.

In most cases, you will also need to attempt to resolve your differences using the procedure discussed in Family Dispute Resolution (Mediation). Courts will generally not make a parenting order unless the parents have attended family counselling.

Doing what is best for the children is the paramount consideration in making a parenting order. Other principles that guide the court are:

• Children have the right to know and be cared for by both parents.
• Children have the right to spend time and to communicate regularly with both parents.
• Parents jointly share the duty to provide for the care, welfare, and development of their children.
• Parents should agree about the future parenting of their children.
• Children have a right to enjoy their culture and to spend time with members of that culture.

Parenting orders generally address one or all of these four issues:

• The children’s residence. Where and when will the children live with a parent? Sometimes children might live year-round with the same parent. Sometimes they might spend summers with one parent and the rest of the year with the other. Sometimes children might alternate residences each week, spending a week with one parent and the next week with the other. It is best for you and your spouse to decide upon your children’s residence together, but the court will decide that issue if you cannot agree.
• Contact with the children. When will the children see the parent with whom they are not living? A contact order might specify a fixed schedule, listing days of the week and times of the day that contact is permitted and dividing holidays (or parts of the day on holidays) between the parents, or it might be more flexible. It might also address contact with other important people in the children’s lives (such as grandparents) and various types of permitted contact (including telephone calls). You should try to resolve these issues yourselves, but the court will make a contact order if you and your spouse cannot agree.
• Decision-making responsibility. Parenting orders can specify whether one or both parents will make decisions about important issues such as a child’s healthcare, education, and religion. The presumption is that parents should make those decisions jointly if they are capable of doing so. A parenting order can also create a procedure that parents must follow when making those decisions.
• Child maintenance. The court might address financial support for a child through a parenting order, although child support issues are more commonly handled administratively. See Financial Support for Children, another eBook in this series, for more details.

A parenting order will only be made after a hearing during which the court considers various forms of evidence, including (if necessary) expert opinions and court reports.

Children and court hearings

Children are not usually made to testify in court. If the court needs to know more about a child’s feelings or desires, it will usually direct a family consultant to prepare a report for the court’s use. The family consultant will talk to the children and relate their view of parenting issues to the court in the court report. The family consultant might also investigate the child’s family life and report on the ability of each parent to provide a safe and nurturing environment for the children.

In some cases, the court will appoint an independent lawyer to represent the best interests of the child. While the lawyer must make the child’s wishes known to the court, the lawyer is not required to follow the child’s instructions. The lawyer is independent and impartial. The lawyer represents the child’s best interests, not the child.

Warning and Disclaimer
Children and Divorce by Alan Weiss is a self-help eBook written from the perspective of the author.

The author does not claim to be a substitute for a lawyer. Nor does he claim knowledge of any individual’s situation. This EBook does not give legal advice its aim is to give practical advice. Visit Aussie Divorce to find the right divorce lawyer.