Donate Child Support Calculator
Skip navigation

A look at different custody arrangements

In Australia, the legislative changes to family law of 2006 have provided for "shared parental responsibility", which is not necessarily real shared parenting and residency ("lives with") but equates more to the American term "joint legal custody" (where the parents share joint responsibility but the child lives with the mother). Both terms - "shared parental responsibility" and "joint legal custody" - are cover words designed to try and hide the fact that little has changed and that courts, and the legal system that lives and works in the courts' shadow (lawyers, psychologists, social workers, police, etc), still promote maternal custody.

NB Joint Custody, sometimes referred to as shared custody or shared parenting, has two parts: joint legal custody ("shared parental responsibility" in Australia) and joint physical custody. A joint custody order can have one or both parts and typically refers to one of two possible scenarios: joint legal and physical custody, or just joint legal custody. In true 'joint custody' arrangements, parents share equal 'legal custody' and 'physical custody' rights. This means that parents participate equally in making decisions about the child's upbringing and welfare, and split time evenly in having day-to-day care and responsibility for the child - including the parent's right to have the child live with them. True joint custody arrangements are rare, because of their potential to cause both personal difficulties (stress, disruption of child's routine) and practical problems (scheduling, costs of maintaining two permanent living spaces for the child). Much more common than true joint custody arrangements (where both physical and legal custody are shared) is 'joint legal custody,' in which both parents share the right to make long-term decisions about the raising of a child and key aspects of the child's welfare, with physical custody awarded to one parent (usually the mother).

The following article is from a USA source, so while the terms are not directly equivalent in Australia, it does serve as a useful conceptual introduction to the various types of post-separation custody and residency arrangements.


11 October 2007

A look at different custody arrangements

Legal custody: "Gives a parent the right to make long-term decisions about the raising of a child, and key aspects of the child's welfare - including the child's education, medical care, dental care, and religious instruction. In most child custody cases, legal custody is awarded to both parents (called 'joint legal custody'), unless it is shown that one parent is somehow unfit, or is incapable of making decisions about the child's upbringing. Legal custody is different from 'physical custody,' which involves issues such as where the child will live."

Physical custody: "A parent who has 'physical custody' of a child has the right to provide day-to-day care for the child. The key aspect of physical custody in most child custody situations is that the child will live with the parent who has physical custody. Most modern custody arrangements give physical custody to one parent (called the 'custodial' parent) and grant visitation rights and shared 'legal custody' to the noncustodial parent. Typically, visitation rights give the non-custodial parent exclusive time with the child every other weekend, alternating major holidays, and a number of weeks during summer vacations.

"In the past, true 'joint physical custody' arrangements were more common, in which the child lived with each parent roughly half the time. Today, such arrangements are rare, and in order to lessen disruption of the child's routine, one parent is usually given primary physical custody of the child."

Sole Custody: "A parent with 'sole custody' of a child has exclusive physical and legal custody rights concerning the child. Sole custody arrangements are rare, and are usually limited to situations in which one parent has been deemed unfit or incapable of having any form of responsibility over a child - for example, due to drug addiction or evidence of child abuse. In sole custody situations, the child's other parent (also known as the 'noncustodial' parent) has neither physical nor legal custody rights, but may be entitled to periods of visitation with the child (though those visits may be supervised, especially in situations involving domestic violence or child abuse)."

Joint Custody, sometimes referred to as shared custody or shared parenting, has two parts: joint legal custody and joint physical custody. A joint custody order can have one or both parts: "In child custody situations, 'joint custody' usually refers to one of two possible scenarios: joint legal and physical custody, or joint legal custody.

"In true 'joint custody' arrangements, parents share equal 'legal custody' and 'physical custody' rights. This means that parents participate equally in making decisions about the child's upbringing and welfare, and split time evenly in having day-to-day care and responsibility for the child - including the parent's right to have the child live with them. True joint custody arrangements are rare, because of their potential to cause both personal difficulties (stress, disruption of child's routine) and practical problems (scheduling, costs of maintaining two permanent living spaces for the child).

"Much more common than true joint custody arrangements (where both physical and legal custody are shared) is 'joint legal custody,' in which both parents share the right to make long-term decisions about the raising of a child and key aspects of the child's welfare, with physical custody awarded to one parent."

Joint legal custody: "Joint legal custody refers to both parents sharing in major decisions affecting the child. The custody order may describe the issues on which the parents must share decisions. The most common issues are school, health care and religious training (although both parents have a right to expose the child to their respective religious beliefs). Other issues on which the parents may make joint decisions include: extra-curricular activities, summer camp, age for dating or driving and methods of discipline.

"Many joint custody orders specify procedures parents should follow in the event they cannot agree on an issue. The most common procedure is for the parents to consult a mediator. …

"'Joint physical custody' refers to the time the child spends with each parent. The amount of time is flexible. The length of time could be relatively moderate, such as every other weekend with one parent; or the amount of time could be equally divided between the parents. Parents who opt for equal time-sharing have come up with many alternatives such as: alternate two-day periods; equal division of the week; alternate weeks; alternate months; and alternate six month periods."

Sources: Guide to Family Law from the American Bar Association, family.findlaw.com



The article is mostly US related which does not apply here. I also note that the threshold or "bar" to get over to obtain an order for Shared Parental Responsibility is minuscule compared to previously. From there the court is directed to look at s65DAA which is all well described elsewhere in the Family Law forums here.

What we do not seem to have in Australia is a society that accepts that dads as well as mums can contribute in equally or substantially equal time sharing dependant of work related constraints and commitments. This is what we need to fundamentally change so that on any separation it is a natural progression that it is automatic and backed by legislation that both parents must share equally or substantially equally the time or make such arrangements that are agreeable. However to do this there have to be some considerations in place such as the locality of the parents, as it is a ridiculous suggestion that the children would go to different schools.

There also needs to be quick and rapid response to the delinquent parent who withholds that contact. s 60CC was supposed to deal with that and some judgements are leveraging 60cc. What is not yet clear are statistics on how we are tracking compared to pre July 2006. I wait with great anticiPATION… :(


Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
You know, I have wanted my ex-partner to take our children for more time. I am the mum with resident children.

We had a private agreement, that did not yeild much money. This didn't worry me, as I valued a happy relationship with him and the children as more important. I just couldn't get him to budge over how short an amount he had them.

It wasn't until I went to CSA and showed him how much he SHOULD have been paying that I got movement.

Unfortunately this angered him and he suggested dates for having the children 2 days over substantial, into shared care. This meant I would be payed….nothing, yet still have the bulk of time and financial responsibility (feeding, clothing, schooling) the children.

Fortunately, the fact that I have never made a big deal over money and threats to go to PDR had him agreeing to a reasonable (though still financially low) arrangement.

I felt CSA were very unhelpful in all of this and basically allowed us to play off one another by not giving enough information - or anticipating what the other party would do with that information.

What I really would like to see is a counsellor who can steer both parties toward doing the right thing - rather than relying on beauracrats. I know PDR goes some way toward this, but it's prohibitive because it is the first step towards court. Neither myself, or my ex wanted to go there……

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
 What you have pointed to highlights the need for non legalistic and administrative processes to help shape what "Society" wants. Individually we all have different ways of seeing how things should work, Collectively we have views about what is "Normal and reasonable" - the government is the last resort because all they can ever implement are systems which are characterised as being
  1. Too late
  2. Too complex
  3. Insensitive
  4. Ham fisted
  5. inflexible
  6. Difficult to deal with

My view is
"You cannot Legislate GOOD behavior"


 Maybe I am not explaining myself well enough
I agree, you can't legislate good behaviour.

Further, you shouldn't have the expectation that bad behaviour will be punished.

You certainly shouldn't assume that laws will act as a detterent when it becomes apparent that some people have no fear of repercussions, no interest in their children's well being and no morality to appeal to.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
1 guest and 0 members have just viewed this.

Recent Tweets