Who Gets Custody Of Minor Children At The Time Of A Separation?

0 Comments

Traditionally, the mother was granted custody of the children because she was the primary caregiver in the case of a divorce. Unless the father actively pursued custody and could prove that the mother was unfit, custody would go to the mother. However, much has changed since then where mothers are as likely to work or have a career as fathers, and in some cases, fathers have assumed the role of primary caregiver.

In most cases, the court prefers to grant joint custody where both parents retain their full parental rights and share custody of the children equally. Sole custody granted to one parent only in cases where there is evidence that the other parent is unable to provide care for a child. Where the parent has been proven to be abusive to the child, abuse substances in some way or is in some other way, an unfit parent.

In the case of a separation where one spouse leaves the marital home, both parents retain custody and their full parental rights and responsibilities. For example, if a mother leaves her husband and takes the children with her. The father still retains, right to visitation and contact with the children as well as the responsibility to keep supporting his children. The same applies to a spouse who leaves the family, but the children remain in the marital home with the other parent.

Usually, no formal agreement put in place at this time as to how visitation and contact with the children will be divided during the separation. However, an agreement can be put in place if necessary. For example, in the case where one parent is deemed to be unfit, the court can be approached to grant a protection order to prevent an abusive parent from contacting the children. Alternatively, supervised visitation can be arranged. Agreements between the two parties can also be reached privately, with the assistance of a Sydney Family Lawyer as to the terms and conditions of visitation and contact with the children.

It is important to note that physical possession of the children during an informal separation does not denote custody. In other words, the parent that the child or children are residing with does not automatically have custody of the children. Either parent, whether they have physical possession of the children or not, can petition the court for custody at any time during the separation.

In the event of a petition to the court, the court will use much the same factors to decide custody as those used in divorce which is what would be in the best interests of the children. In most cases, the court will once again prefer to grant joint custody to both parents rather than to one parent. Proof that one parent is unfit will be necessary in most cases for sole custody granted to one parent.

It is advisable to contact a family lawyer or solicitor if you would like to petition the court for sole custody of your children at the time of separation.