How can I apply for sole custody of my child?

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 A starting point

While the term child custody is widely used, it is not used in the Family Law Act 1975, which uses the phrase parental responsibility. The two terms equate to the same thing, however, Court proceedings, Court orders, and legal documents will all use the phrase parental responsibility.

Let’s also be clear that a child is someone who is not yet 18 years of age – even though many teenagers approaching that age will probably cringe at being described as a child!

When parents separate, be they married or de facto, children from the relationship still need to be cared for, and the Court will start from a position of equal shared parental responsibility. It should be noted that equal responsibility does not necessarily infer equal time. It may be, for example, that a child spends the school term with one parent, and the holidays with the other, or whatever is decided as being best for the child.

The Act defines parental responsibility as, all the duties, powers, responsibilities, and authority which, by law, parents have in relation to children.

In practice, this equates to the big-ticket items of health care, education, food and shelter, cultural exposure, discipline, and loving pastoral care. It is not intended to delve into the minutia of what jeans to wear or what to have in the school lunch box. Parents are expected to confer and discuss, in jointly overseeing the upbringing of the child.

It is vital to understand that the Court, in making this presumption of shared responsibility, will always put the best interests of the child at the forefront of its decisions, and parents are expected to do likewise.

Best laid plans

While shared responsibility is the presumption, the granting of it is not automatic, and the Court may instead opt for sole responsibility (full custody) should a child’s welfare be under threat from circumstances involving things such as:

  • Abuse – where the child, or the other parent, has experienced physical, sexual, or psychological abuse
  • Substance abuse – where a parent’s use of alcohol or drugs prevents them from providing proper care
  • Abandonment – a parent fails to maintain contact with a child, or shows little or no interest in providing care
  • Neglect – a parent neglects to provide proper care and attention in the major areas of upbring as listed earlier
  • Mental illness – a parent suffering from a mental illness may demonstrate erratic or unpredictable behaviour that places the child at risk
  • Incarceration – an incarcerated parent will be unable to provide proper care

While none of these may have been factors at the time of the initial issuance of Court Parenting Orders that describe parenting arrangements, circumstances can change, and a parent may see fit to apply to the Court for a rebuttal of the initial Orders and the granting of sole parental responsibility.

Applying for sole parental responsibility

The absolute first step in the process is to obtain sound legal advice from an experienced family law lawyer.

The process will then be:

  1. Prepare an affidavit that details the reasons for the application
  2.  Gather full supporting evidence to justify the case
  3. Make application to the Court
  4. Present the details to the other parent
  5. Appear as required at Court hearings
  6. Receive and comply with new Orders

If a child is at risk, it is vital to act promptly and decisively. At such a time of emotional stress, sound legal guidance from a highly skilled and empathic lawyer is crucial to the best interests of the child.



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