Knowing what is fact and what is fiction when it comes to child custody laws can be confusing when there is so much mis-information out there. Family Lawyer Kasey Fox busts 3 common child custody myths.


Myth – Parents have rights

You may think it is commonsense that parents have the ‘right’ to see their children, but in fact, the truth is they don’t. Under the Family Law Act, the people who have rights are not the parents, but in fact the children.

If you end up in Court about arrangements for your children, rather than the Judge focusing on parents’ “rights” the decision is based on what is in the children’s best interests. This is part of the reason why the terminology moved away from words like “custody” and “access”. The reasoning behind this is that children should not be thought of as something someone can possess (like property) but as little people whose best interests should be the paramount consideration.

In every case, the Judge must decide what is best for the children. Although parents do not have “rights”, in the majority of cases, provided it is safe, the Court finds that it is in the children’s best interests to spend time with both of their parents.


Myth – The laws says 50/50

There is no law that says children are to spend equal time with each of their parents. For some families, 50/50 arrangements can work really well, but for others, it just doesn’t work. Determining what is the best arrangement for a particular child is about what works for the child and not about what is “fair”.

In some cases, the Courts can and do order 50/50 arrangements for children, but only if it is appropriate in all of the circumstances for those children and that family. There is a long list of factors that the Judges consider when deciding a children’s case.


Myth – kids don’t have a say

One of the factors Judges consider when making a ruling about living arrangements for children are the children’s wishes. However, we need to be careful that children don’t feel like they have to choose between their parents or feel pressure from one or both parents to say a particular thing.

To try and safeguard children, and keep them out of the Court room, the way the Court investigates children’s wishes in most matters is by getting a Family Report. A child expert (often a psychologist) meets with the children and talks to them, in an age appropriate way, about their family and what they want. The expert also talks to the parents and reads the Court documents. That expert then provides a report to the parents and the Court, setting out what they recommend and why. Are the recommendations always exactly what the children have said they want? No. It is the expert and the Court’s responsibility to determine if what the children are saying reflects their actual wishes, and whether what they want would be good for them. As in life, sometimes what is best for children, is not the same as what they want.


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