“Custody” vs “Parental Responsibility”

There is one very common question among parents who are separating or have separated: “Will I get custody of the kids?”

Although there is no longer a reference to the phrase “Custody” in the Family Law Act 1975, the legislation references two different matters, which fall within the scope of what was more commonly referred to as ‘custody’:

  1. Parental Responsibility; and
  2. Who a child lives with as opposed to who the child spends time with.

Unless there are existing Orders made by a Court to say otherwise, the parents of a child are considered to have ‘parental responsibility’ for their child or children, regardless of whether they are separated. When parenting Orders are made by a Court, they will often include an order for “Equal Shared Parental Responsibility” or “Sole Parental Responsibility”.

What is Parental Responsibility?

Parental responsibility refers to the duties and responsibilities that parents have in relation to their children, such as:

  • Where they go to school;
  • What extra-curricular activities they attend;
  • Any religious or cultural activities or practices they participate in; or
  • Decisions relating to their medical treatment or health.

These are examples of long term decisions which parents with equal shared parental responsibility are obliged to consult the other parent about.

Parents are not necessarily obliged to consult each other about day to day decisions about their child, such as what they wear or what they take for lunch on any given day.

The Court has the power to allocate Parental Responsibility to people other than the child’s biological parents, including:

  • A person who has adopted the child;
  • A grandparent of the child, or another family member;
  • A de-facto or step-parent of the child; or
  • A person who may live with the child.

Equal Shared Parental Responsibility

Generally, “Equal Shared Parental Responsibility” is ordered for both parents, which operates on the basis that parents (even if they are separated) should be able to make certain concessions and ultimately make decisions about their children’s welfare and their future.

This means that although a child may live with one parent, the other still holds the same duties and responsibilities as the other parent to ensure that their children are cared for and that they are safe.

Sole Parental Responsibility

In cases where there is significant conflict between parents or a parent lacks parental capacity, the Court may consider making an order for sole parental responsibility in favour of one parent.  When an order is made for sole parental responsibility, it will generally be allocated to the person that the child is living with.

There are some cases where an order for equal shared parental responsibility may not be appropriate, for example:

  • If there has been a history of violence towards a parent or member of the child’s family;
  • If it is not practical (i.e., if one parent did not frequently spend time with the children, or lived overseas); or
  • If a parent does not have the capacity to care for or assist in the care of the child.

Parents must have adequate reasons for seeking an Order for sole parental responsibility in relation to their children.  It cannot simply be because there is conflict, because it is often the case that parties may engage in a certain level of conflict following separation.

Every case is different and ultimately, the deciding factor will be “What is in the child’s best interests?” Section 60CC of the Family Law Act 1975 sets out the considerations used by the Court to determine the best interests of children in parenting matters.