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Kerry Anne Aguilar

Kerry has been practicing exclusively in family law since 2017. Kerry has a wealth of experience in complex family law matters relating to divorce, separation, children and parenting disputes; and…
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Key Takeaways:

  • A child custody battle can be exhausting and stressful for all parties involved. This stress can also cause parents to act rashly and unfairly.
  • Poor behaviour between parents can impact a child’s relationship with their parents significantly, leading to consequences like parental alienation.
  • All decisions that impact a child should be made with their best interests front and centre.

Parenting isn’t easy – it can be emotionally exhausting, stressful and non-stop – and that’s when things are going well. When you’re going through a divorce or separation, parenting can be even harder, especially if you’re locked in a child custody battle.

Unfortunately, when a relationship or marriage ends and you have children, it means that you’re faced with a lot of challenges and changes as parents. From new living arrangements and financial pressures to how and where your kids will spend their time and co-parenting. It can be overwhelming just thinking about it.

Due to the emotional nature of child custody and parenting matters, it’s very common for parental conflict to occur, which can lead to more stress and result in a perpetuating emotional cycle that can take a huge toll on both parents and their kids. It’s also common that during these matters, the parents get caught up in their emotions and overlook what is actually truly in their child’s best interests.

As family lawyers, we see many instances where parental conflict is so extreme that the Federal Circuit and Family Court needs to get involved to help resolve parental disputes. This is a scenario that most parents would rather avoid and that’s what we’re here to help with in this article.

We’ve put together a list of behaviours that commonly cause conflict in child custody matters and co-parenting and our aim is to help you understand why these behaviours can make your custody disputes more difficult and help you to avoid further or potential conflict.

The child’s best interests

Before we dive into the common custody battle mistakes you could be making, it’s important to understand the concept of the best interest of the child.

While the phrase itself is somewhat self-explanatory, it’s also an incredibly important principle in the Australian Family Law system. Under the Family Law Act, when decisions regarding children need to be made, they should be made with the best interests of the child in mind. The best interests of the child are based on a number of considerations including the two primary considerations:

  • the benefit to the child of having a meaningful relationship with both of the child’s parents; and
  • the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

As you read through our list of common custody mistakes parents make, you will see how these behaviours are not in the child’s best interest.

Child custody terminology

Throughout this article we will use the term child custody, referring to the living arrangements of the child and how they will spend their time. Under the Australian family law system, the term custody is no longer used, and in its place, we use terms like parenting arrangements and parenting orders.

We’ve chosen to still refer to child custody as this is a commonly known and understood term but if you have any questions about parenting arrangements, child custody or parenting matters, feel free to get in touch.

5 mistakes you could be making in your child custody battle 

1. Bad-mouthing the other parent – especially in front of your kids

Whether you’re at the beginning of your separation, you’ve been faced with co-parenting difficulties for a number of years, or you’re locked in a very bitter legal custody battle, it’s common to want to say some not-so-nice things about your kid’s other parent.

It’s an emotional time – especially if your co-parent is not playing ball. But the only good thing that can come from bad-mouthing the other parent is a momentary relief from your frustration.

Children are very receptive and if the last thing they want is to hear bad things about their other parent – after all, they do deserve to have a meaningful relationship with BOTH parents, regardless of how annoyed you may be.

Whether it’s an unintentional slip of the tongue, an overheard comment to a friend, or an intentional dig at their other parent, it can impact their relationship with the other parent and even their relationship with you.

In addition to it affecting your child, bad-mouthing their other parent could impact the outcome of your matter in court. Word could get back to the other parent and it could be used against you in their argument as to why they should have “custody”.

What you can do instead:

If you’re finding it difficult to cope emotionally or you need to talk about your situation, consider counselling or therapy services. This can be a great way to work through your feelings and gain perspective on your situation.

You could also consider engaging in mediation services to resolve matters that may continue to occur.

We’ve put together a list of resources and support services that could help you here.

cartoon image of a parent crying in front of their children.

2.       Emotionally manipulate your child

The idea of emotionally manipulating your child has probably never crossed your mind, however, it commonly occurs and is often unintentional. For example, the feelings of frustration you may feel when faced with parental conflict can lead to you wanting your child to understand your feelings and perspective. You may want to tell them just how bad their other parent is or even make them feel sorry for you.

While you may have valid feelings of frustration, attempting to make your child feel sorry for you or align with your views can be considered to be emotional manipulation. It can also lead to very serious negative consequences for you.

Trying to influence your child’s thoughts and feelings towards their other parent could be considered to be parental alienation, which can impact a court’s decision as to where the child/children will live, visitation and contact between the children and their parents. You can learn more about parental alienation and its legal consequences here.

What you can do instead:

It’s very common to have negative feelings about your child’s other parent after you’ve ended your relationship. And while you may wish that your child could understand your perspective, unless they face harm, they have the right to have a relationship with their other parent, regardless of how that makes you feel. It’s important to find an outlet for your feelings, which is where support groups and counselling services come in handy.

It could also be beneficial to you to discuss your matter with a family lawyer who specialises in child custody and parenting matters. They could help you understand your legal situation, provide you with options, and ensure that you’re doing what is best for your child.

3.       Not communicating with the other parent

We know that speaking to your ex is probably one of the last things you would like to do – especially if the relationship didn’t end well. But, when you decided to have a child with them, you made a decision to have them in your life – parenting a child is a life-long commitment.

When you have kids, decision-making never stops – from big decisions like where they will go to school and how they will spend their time, to smaller daily decisions, like what you will feed them and what they will wear. Not all of these decisions require input from both parents but there are lots of times that you may need to consult the other parent.

Matters like discipline, gifts, parent-teacher meetings, and even play dates may require some coordination between the parents. And while some big decisions can be made ahead of time you can’t plan for everything, so chances are that you’re going to need to speak to your kid’s other parent at some point.

For the big decisions, like schooling and medical treatments, both parents should have a say as each parent has what is known as equal shared parental responsibility. This is automatic and doesn’t mean equal time with each parent, rather it means that for the big decisions that will have a long-term impact on the child, each parent has a say and the decision should not be made by only one parent but both.

Communication is also extremely important from a legal perspective. If you’re involved in a parental dispute that ends up making its way to the family law court, showing that you can work with the other parent by communicating with them will be seen positively in the eyes of the court. It shows that you’re putting your child and their needs first ie. Their best interests are at the forefront.

What you can do instead:

Not all communication needs to be face-to-face or even voice-to-voice, there are so many different ways to communicate that there really isn’t an excuse not to – unless doing so will put you or your child in harm’s way.

Emails, text messages and social media are all easy and legitimate ways to communicate. Or you could even try using one of the many different co-parenting apps out there. Many of these apps have been designed to make communication easy, even when you cannot stand the other person. Check out some of these co-parenting apps here.

carton image of parents and child talking.

4.       Denying access to the child

Making it difficult for the other parent to have a relationship with your child by not allowing them to access their child will not be seen favourably by the court if you’re involved in a custody dispute or parenting matter.

The court wants to see that both parents can demonstrate that they are willing to co-parent and put the interests of their child first.

Unfortunately, it can be a common occurrence that parents will use their children as bargaining chips to use as leverage to control a situation and this includes controlling or restricting access to the child for one of the parents. Whether it’s a mother withholding a child from their father or a father taking the children without permission, treating the children as if they are possessions and disregarding any court orders or agreements should never occur.

This also often occurs when a relationship doesn’t end well. It can be difficult for people to separate their personal emotions and their parenting, which can result in parents using their children as pawns. This can also lead to parental alienation in some instances.

If you believe that your child is at risk of being harmed physically or emotionally and you are preventing access to protect the child, then this is the right course of action. Some of the potential scenarios where you may need to deny access to your child include:

  • The other parent is acting violently towards you or the child;
  • The other parent is taking drugs or using drugs when the child is with them;
  • The other parent has said something that makes you believe that they will not return the child.

These are only some of the situations that could mean that you need to deny access to your child. If you find yourself in a dangerous situation you should call the police immediately.

What you can do instead:

If there is no reasonable risk of harm to your child, then you should be doing everything you can to encourage and facilitate a healthy relationship between your child and their other parent. It doesn’t mean you have to have a great relationship with the other parent but you can co-parent effectively.

If you believe you or your child could be at risk of harm and you do deny access to your child, we recommend seeking legal advice. A family lawyer can help you to understand your options and even help to protect you and your child too. If you or your child are in immediate danger, then you should contact 000

5.       Breaching court orders

Whether you agree with a court order or not, unless there is a risk of harm to your child, you should never breach a court order. Rather you should follow the appropriate course of action to appeal an order.

Breaching court orders is very serious and if you’re found guilty of doing so you could be penalised in a variety of different ways including financial consequences, community service or even jail time. The severity of your punishment will depend on the unique circumstances of the case.

It is possible to unknowingly breach a court order, such as if you didn’t understand all of the requirements of the order. But if you’re found to have purposely or continuously breached a court order, this could be seen as you not being willing to allow your child to have a meaningful relationship with their other parent and this would be considered to be against your child’s best interests and not looked upon favourably.

What you can do instead:

If a family court has made orders in your parenting dispute, then it’s important to ensure you understand all that is required of you and the other party/ies involved. A family lawyer can help you.

If you’ve breached a court order or the other party has breached one, we also recommend seeking legal advice. Court orders can be breached in numerous ways and it’s best to understand all of your options before acting.

cartoon image of a family involved in a child custody battle.

Bonus: 6. Not putting the child’s best interests first

Being a parent involves putting your child first and while in many situations you probably already do this, however, when you’re going through a particularly difficult situation, like a separation, it can be easy to overlook their needs and let your emotions take control.

Despite your feelings about the other parent, if there is no risk of harm to your child, then they should be able to have a relationship with the other parent. It can be difficult to put a lot of trust in someone else, especially after a break-up but it’s important to put the needs of your child first and not to think in terms of how you can hurt or punish the other parent.

If you find yourself having difficulty doing so, some of the remedies we’ve mentioned earlier, such as counselling, support groups, and even legal advice can provide you with guidance. With decisions that will impact your child, take the time to think about the impacts and if it’s genuinely in the child’s best interest.

Are you involved in a child custody dispute?

Parenting matters can be difficult to manage, especially when you’re involved in a dispute with your child’s other parent. Here at Unified Lawyers, our specialist family law firm has extensive experience in family law matters that involve parenting and children’s matters. We’re here to offer advice, provide legal representation and ultimately help to resolve your custody disputes so that you can take care of your child’s best interests.

We offer a free initial consultation and our services are available Australia-wide. Talk to Australia’s leading custody lawyers today by calling us on 1300 667 461 or booking online using the button below.

unified-lawyer-kerry-ann-aguilar

Kerry Anne Aguilar

Kerry has been practicing exclusively in family law since 2017. Kerry has a wealth of experience in complex family law matters relating to divorce, separation, children and parenting disputes; and financial matters including but not limited to property settlements, spousal maintenance, child support agreements, prenuptial agreements, cohabitation agreements and postnuptial agreements.

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