As the holidays are upon us it is worthwhile remembering that for separated parents, the Family Law Act states that both parents have “equal shared parental responsibility” of their children, until such time that a court says otherwise.
“Equal shared parental responsibility” relates to parental responsibilities of children. It means that parents must make joint decisions about any major or long-term issues affecting their children. For instance where a child lives, and where they go to school, both constitute examples of long-term decision making. By law, both parents hold equal shared parental responsibility of their children.
There are some rare circumstances where one parent has sole parental responsibility for children however an order of the court would need to be made which effectively removes parental responsibility from the other parent. It may be the case that the risk to the child by one of the parents due to family violence or parental incapacity is such that the court may consider that only one parent should have parental responsibility for the child.
An example of where equal shared parental responsibility has been undermined, is where one parent covertly moves away from the other parent and they do not inform the other parent of the change in residence or change in school enrolment of the child. Clearly a decision made by one parent alone to relocate for whatever reason, is in breach of the presumption of “equal shared parental responsibly” which both parents hold.
Furthermore, it is also worth noting that despite the portrayal of bitter “custody disputes” in Hollywood movies and on television, parents do not have rights over their children nor does the court use language such as custody.
On the other hand however, children do have rights. Children have a right to a “meaningful relationship” with both of their parents if it is in the child’s best interests. Clearly if one parent relocates without the other parent’s knowledge or consent, the child’s right to having a meaningful relationship with both parents can be put at risk.
Parents should particularly consider how flippant or ill-considered decisions impact on their children’s long term happiness, welfare and stability and should seek to make decisions which are child focused rather than decisions which are convenient to that parent or which purposely seek to antagonise the other parent.
Parents should be practical and apply common sense when negotiating parenting agreements between them or engage solicitors to prepare parenting plans and consent orders following sound legal advice. Parents should avoid contested disputes wherever possible to prevent a child’s childhood from being spent in lengthy legal proceedings.
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