Separation solicitors, or family lawyers, will be the first person to tell you that parental responsibility is a main part of family law that you need to understand throughout the process. While sometimes it can be an easy part of the process, there are occasions where dealing with parental responsibility causes a huge conflict between parents. It's important to understand what parental responsbility is and how the court deals with it.
What Is Parental Responsibility?
The Law About Parental Responsibility...
The Family Law Act outlines what parental responsibility means (see this link) and here states that there is it is considered to be in the best interests of the child for there to be a presumption of equal shared parental responsibility between the parents of the child unless there is abuse of the child or family violence. It also notes that it may be re-butted if this is not considered to be in the child's best interests.
...but what does that actually mean?
Parental responsibility means the major, long term decisions about the child, such as their education, name, religion and medical decisions. This is not a definitive list and may include other decisions to make about a child but these are generally the most discussed issues within the umbrella of parental responsibility.
The 'presumption' for equal shared parental responsibility means that the court, and the law, assume that it is in the best interests of a child for his or her parents to make joint decisions about those long term issues. Of course, it notes that if there is any danger around this, like abuse or family violence, then equal shared parental responsbility should not be presumed.
And what does joint decision making mean?
This one is a little more difficult. The requirement to make joint decisions in relation to these issues can be more complicated in practice. It essentially means that one parent must consult with the other before making, or taking any action in relation to, these decisions. This consultation can take place in whatever way works for the parties. If there is no agreement, one party cannot unilaterally make the decision themselves if mediation cannot resolve the dispute, then the parties must apply to the court to make the decision for them.
What do we do if we can't agree?
If you have consulted with each and have not been able to make a decision, then you will most likely need to attend mediation (learn more about mediation here) to make a genuine effort to resolve your dispute. If you still cannot agree, you will likely need to apply to the court to have them make the decision for you. You should consult with separation solicitors before starting the court process as it can be expensive and lengthy and you still may not get the result that you are happy with.
Can I get sole parental responsibility?
Yes it is possible, but it can be difficult as the court presumes that joint parental responsibility is in the best interests of the child. Sole parental responsibility is often awarded when the child is at risk in the care of the other party or there is domestic violence involved. Sole parental responsibility can also be granted if one party shows that it is not in the best interests of the child to have equal shared parental responsibility. It is also possible to have joint parental responsibility for some aspects, such as education, but sole parental responsibility for other decisions, like religion.
It can be a minefield navigating the ins and outs of parental responsibility if it is not just equal shared so it is important that you get legal advice from separation solicitors before you apply to the courts for any changes to the presumption.
Contact us for more information or to book a free legal advice session.
This information does not constitute legal advice. You should consult with a lawyer to obtain independent legal advice relevant to your situation.
