Virtual Consultations Available - Contact Us

Navigating Difficult Custody Cases During Divorce or Separation

1st January 1970

Divorce is deep in Australia. There were 2.0 divorces for every 1,000 Australians in 2017. 

47% of divorces in 2017 involved children younger than 18. Child custody is always difficult to arrange. But there are difficult custody cases that you deserve to know about. 

Can a grandparent get custody of their grandchild? How does autistic child custody work? Does adultery or distance between co-parents impact child custody at all?

Answer these questions and you can work out child custody arrangements with minimal stress. Here is your quick guide. 

How to Get Custody of a Relative's Child 

Grandparent custody is possible, though it is uncommon. The Family Law Act 1975 provides regulations for child custody in Australia.

Section 60CA dictates that the best interests of the child must be a court's primary consideration as it contemplates custody arrangements. The court must protect the child from abuse and family violence at all costs. 

This means that the court can allow a child to live with their grandparents. The grandparents must prove a positive and strong relationship with the child.

They must apply to the court with full documentation. They then show that a child living with their parents will face abuse if the parents receive full custody. 

If a child has been living with their grandparents due to an informal agreement with their parents, the court can issue a parenting order by consent. This formalizes the informal agreement, though it requires an application to the court. 

It is harder for an uncle/aunt, cousin, or more distant relative to receive custody. The ones that do have very close relationships with the child and informal agreements to help raise them. 

How to Get Custody of an Autistic Child 

There are no laws that describe specific parameters for custody cases involving children with autism. Courts try to adopt an individualized approach. They examine a child's particular characteristics and how their parents help them. 

When determining child custody, the court examines how parents communicate with their children. A child with autism may communicate in a different manner than other children, relying on non-verbal or textual signs. If two parents struggle to talk to their child, this may affect the arrangements. 

Some parents abuse their children with autism. This can result in them losing custody. 

But there are no differences in terms of paperwork and court appearances between non-autistic custody and autistic custody cases. Parents should be expected to address the matter of their child's autism. 

Can You Lose Custody of a Child for Adultery? 

Australia has a no-fault divorce framework. A person files for divorce after their marriage has broken down irretrievably. Why or how is not essential information. 

In most cases, adultery would not impact child custody. A child is entitled to a meaningful relationship with both parents, and both parents can help a child regardless of what they have done. 

Adultery may impact child custody if the adultery threatened the child in some way. Domestic violence, substance abuse, and criminal activities will impact a court's judgment. 

How to Get Emergency Custody 

One parent may apply for an interim parenting order. As the name suggests, this is a temporary custody order that assigns custody to a parent or relative before the court issues a final order. 

One parent can apply for an interim order at any time. They can fill out paperwork and submit it to the court. If a parent is unable to go to court, they can submit an application online. 

An interim order is reserved only for emergencies. If one parent has concerns about domestic violence, abuse, or abduction, they should file for an interim order. It is not for a scenario involving sick child custody or acrimonious parents. 

What if a Non-Custodial Parent Does Not Practice Visitation? 

Visitation refers to visits that a non-custodial parent makes to their child. The parent and child can eat meals, go to public locations like museums, and do chores. 

Even if a parent does not have custody, they should try to practice visitation. It is important that both parents remain involved in their child's life, giving them emotional and physical support. 

A parent may ask for limited visitation if they have some responsibility that impedes time with their child. But any non-custodial parent should expect some amount of visitation. 

If a parent skips out on their visitation, they may face legal penalties. Any future applications for custody or changed visitation arrangements may be rejected. 

Who Pays the Travel Expenses for Child Custody?

Two parents who share custody of their child must pay equal amounts for travel expenses. The means of transportation or exact perimeters of parenting time does not matter. 

The parents can work out how exactly they will cover their transportation costs. Transportation costs are separate from child support payments.

They can pay for each trip 50-50. One parent can pay for one trip, then the other parent can pay for the other one. 

Once a child is old enough, they may be able to drive or fly by themselves. They should not be expected to pay for their own transportation. Their parents should help them, even if they have a paying job. 

Get Help With Your Difficult Custody Case

There are quite a few difficult custody cases. A grandparent can receive custody of their grandchild, especially if they have an informal agreement to raise them. But they must file all necessary paperwork. 

A parent who abuses their child with autism can lose custody. But adultery has no impact on custody arrangements. An interim order is reserved for emergency situations. 

Non-custodial parents should practice visitation, and they may encounter legal problems if they don't. Both parents must help with transporting their child. 

Don't handle child custody on your own. Koolik and Associates serves Queensland residents. Contact us today. 

Please note the contents of this post is information only and not legal advice. 
If you require legal advice it is best to contact one of our lawyers who can review your particular circumstances and then provide tailored advice according to your needs


RELATED ARTICLES

Copyright © 2021 Koolik & Associates Lawyers. Website Powered by Oncord