What does "child custody" mean?
In everyday conversations, people refer to the concept of "child custody" as being which parent the child (or children) will live with most of the time. Child custody is also a term that is used extensively in popular culture and throughout the media. It is no longer a term that is used in Australian courts however.
In Australia, the phrase "child custody" fell out of favour due to the implications associated with the term. It was considered that the term suggested an artificial sense of superiority or control in favour of the parent who had been granted custody, and that the parent who did not have custody may be seen as a lesser parent.
The terminology changed from child custody to "residence" and "contact", where the children would reside with one parent and have contact with the other. This terminology suffered from the same fate as that of "child custody", in that the parent with whom the children resided may be perceived in the same preferential manner as a parent who would have held custody under the old system.
The current terminology of parenting orders is "live with" and/or "spend time with". Parenting orders will commonly be drafted to say that the children shall live with one parent and spend time with the other. Neutral alternatives to this are also relatively common, with orders drafted to say that the children shall live with one parent for a period of time, and live with the other parent for a different period of time.
Equal time arrangements (50/50 custody)
There is no requirement that parenting orders be drafted in terms such that the children spend equal amounts of time with each parent. In fact, 50-50 parenting arrangements are not the most common outcome in contested court proceedings. In bitterly contested custody battles, the court will likely conclude that the inability of the parents to amicably resolve parenting disputes by consent suggests a lack of cooperation and communication skills necessary for an equal time arrangement to work. An equal time parenting arrangement is often presumed to require the parents to mutually assist each other in their common goals as parents (or, at the very least, not to actively undermine and sabotage each other). A lack of respectful and cooperative communication might suggest that the parents are unable to make an equal time arrangement work.
The Family Law Act 1975 mandates the court to consider making parenting orders that provide for equal time in cases where equal shared parental responsibility is ordered. In child custody cases, parental responsibility refers to the long term decision making powers of parents, such as major medical decisions or where the children go to school. Section 61DA of the Family Law Act requires the court to apply a presumption in favour of equal shared responsibility (although this presumption can be rebutted).
If the court makes an equal shared parental responsibility order, then section 65DAA of the Family Law Act requires the court to consider whether an equal time custody arrangement would be in the best interests of the child. If it is, and if an equal time parenting order would be practicable (ie. able to be put into practice successfully), then the court must consider making an equal time parenting order.
If you are seeking equal time parenting orders (50-50 child custody) then it is imperative that you first succeed in establishing the foundations that allow for an order of equal shared parental responsibility. Call one of our expert family lawyers today for a free consultation, and we can discuss how this might be achieved in your child custody case.
