Full Custody of a Child Without Going to Court Guide

Posted on November 30, 2023 by James Lee

Profile picture of James Lee a Sydney family lawyer

James Lee

Author
James has practiced family law since his admission to the legal profession. He has extensive experience in all areas of family law, from property and parenting to child support, spousal maintenance and binding financial agreements.

Key Takeaways:

  • When it comes to decisions regarding a child, such as their living arrangements, the Federal Circuit and Family Court of Australia will prioritise a child’s best interests over the parent’s preferences.
  • Our family lawyers can provide crucial guidance on parenting arrangements, including seeking full or sole custody of your child.
  • It is possible to create agreements regarding a child’s living arrangements, time spent with parents and parental responsibility without having to go to Court.

Navigating the complex landscape of parenting matters and child custody in Australia can be daunting, especially when it comes to pursuing full custody or sole responsibility.

But what if there were a way to achieve this without going to court?

In this comprehensive guide, we’ll delve into the intricacies of parenting and custody matters, the differences between parenting arrangements like full and sole child custody, and how to get full custody of a child without going through court proceedings, all while securing the best outcome for your child’s well-being.

Please note that throughout this article we will use the term ‘custody’ as it a commonly used colloquial term, however, this term is no longer used in the family law system in Australia. We will explain in more depth the correct terms and their relation to these terms throughout the article.

Full Custody vs Sole Custody

In Australian family law, the terms ‘full custody’ and ‘sole custody’ are not typically used anymore. Instead, the legal system uses different terminology to describe arrangements regarding children following a separation or divorce. We’ve listed the most commonly used key terms in Australian family law regarding child custody and parenting arrangements:

  1. Parental Responsibility: This term refers to the duties, powers, responsibilities, and authority that parents have in relation to their children. Under the Family Law Act 1975, both parents are presumed to have equal shared parental responsibility, unless the Court orders otherwise.
  2. Equal Shared Parental Responsibility: This is the presumption that both parents should have an equal role in making decisions about major long-term issues affecting their children, such as education, religion, and health matters.
  3. Live with Orders: This is a type of parenting order that replaces what was previously known as “custody”. These orders specify with whom a child will live. This can be one parent exclusively or both parents in a shared arrangement.
  4. Spend Time with Orders: These orders replace the term ‘access’ or ‘visitation’. They outline how and when the child will spend time with the parent they do not live with.
  5. Sole Parental Responsibility: In some cases, the court may decide that one parent should have sole parental responsibility. This means that this parent can make major decisions about the child without consulting the other parent. This is usually in situations where shared responsibility would not be in the child’s best interests.

These terms reflect the emphasis in Australian family law on the rights and welfare of the child, rather than the rights of the parents, and on encouraging shared parenting responsibilities wherever possible.

When people are discussing the differences between sole custody and full custody, they are generally discussing the nuances in child custody arrangements, particularly regarding the extent of parental rights and responsibilities, as well as visitation and living arrangements.

Both terms suggest a high degree of control and responsibility by one parent over the child’s life. However, full custody might be perceived as offering even more exclusivity in that role, potentially to the point of completely excluding the other parent.

Below, we will discuss these terms and their common interpretations in more detail.

What does full custody mean in Australia?

The term full custody can be interpreted various ways and can often imply that one parent has both sole legal and sole physical custody of a child. This might mean that one parent has complete responsibility for a child, and this could include limited to no involvement rights for the other parent.

As we touched on earlier, full custody is not commonly used in the legal field anymore, and instead more aligns with the concept of sole parental responsibility that we discussed above, combined with live with orders, where the child resides primarily with one parent.

It’s important to note that Australian family law places a strong emphasis on the best interests of the child, and decisions around parental responsibility and living arrangements are made with this as the central consideration.

What does sole custody mean in Australia?

Like full custody, sole custody is not a term that is commonly used in the family law system, and more aligns with sole parental responsibility and live with orders that we discussed earlier.

The term sole custody often refers to when one parent has the exclusive right and responsibility to make significant decisions about the child’s welfare, including education, medical care, and religious upbringing. It can also imply sole physical custody, meaning the child lives primarily with one parent, while the other parent might have visitation rights or limited contact.

Sole custody can also be interpreted as less extreme form of full custody.

 

What Is Equal Shared Parental Responsibility?

Equal shared parental responsibility is the legal presumption in Australia that both parents have equal decision-making authority over their child’s upbringing. This means that the Court begins with the assumption that both parents should share in the responsibility of raising their child, fostering a connection with both parents, provided that it is secure and suitable.

It’s important to note that the term equal shared parental responsibility relates solely to the distribution of parental responsibility for a child, and not necessarily the equal division of time spent with the child.

If one parent seeks sole parental responsibility, they must present persuasive evidence to counter the presumption of shared equal parental responsibility and show that it is not in the child’s best interest to have the other parent make major decisions for them.

When can I get full custody of my child?

Obtaining full custody of your child in Australia depends on a range of factors, with the Court prioritising the child’s best interests when making custody decisions. Below, we will discuss some of the key factors that could influence a Court’s decision to grant “full custody” of a child to one parent.

Grounds for a full custody in Australia

A wide range of factors will influence a Court’s decision to grant full custody of a child to one parent – and these are all based around the best interests of the child and their well-being. Some of the most persuasive factors include:

  • Dangers to the safety of the child;
  • History of domestic violence;
  • Alcohol or substance abuse;
  • Parental alienation; and/or
  • A parent’s inability to parent their child.

In addition to the above, the Court may also evaluate the child’s views, but this may be dependent on their age and their emotional and intellectual maturity.

Can One Parent Seek Full Custody If the Other Parent Objects?

One parent can seek full custody even if the other parent objects. The decision is not necessarily based on what the parents want but rather, what is best for the child.

However, before seeking custody parenting orders, the parents must attempt to arrive at an agreement themselves or with the assistance of a Family Dispute Resolution Practitioner. If they cannot reach an agreement, then they can apply to the Federal Circuit and Family Court of Australia.

The court begins with the presumption of shared equal parental responsibility, and the parent who wants to seek sole custody must provide evidence to counter this presumption and demonstrate that it is not in the child’s best interest to have the other parent make decisions for them nor have frequent contact with the child. This can be a difficult hurdle to overcome, but with the right legal representation and evidence, it is possible to gain “full custody” even if the other parent objects.

How to get full custody of a child without going to court?

While it may appear daunting, it is feasible to gain full custody of a child without resorting to Court. The key lies in reaching an agreement with the other parent on sole parental responsibility and living arrangements, as well as gathering the necessary evidence to support such a claim.

This step is best undertaken with the guidance of a family lawyer experienced in parenting matters. They can help you to understand your legal options, as well as the ramifications of these sorts of decisions and provide you with information about how much does a child custody battle cost as there will be legal fees to consider.

It’s important to remember that while full custody may seem like an ideal option, it is dependent on your circumstances. There may be more appropriate options, such as those included in our article regarding child custody schedules by age Australia. Decisions regarding parental responsibility, a child’s living arrangements and spending time with either parent, should never be made lightly.

Sole Parental Responsibility

Achieving sole parental responsibility can be accomplished through a parenting plan or consent order if both parents agree. A parenting plan is a written and signed document that outlines the care arrangements for the children and can be altered at any time by formulating another written agreement that is both signed and dated by both parents. While a parenting plan is not legally binding, it serves as a signed written agreement between parents that outlines the care arrangements for the children.

On the other hand, a consent order is a documented agreement between the parents that is presented to the Court and becomes legally binding. This option offers more security and enforceability compared to a parenting plan, ensuring that the agreed-upon custody arrangements are adhered to by both parties.

What evidence is relevant to an order of Sole Parental Responsibility

When pursuing an order of sole parental responsibility, compiling pertinent evidence to substantiate your claim is vital. This evidence may include:

  • Police reports;
  • Court orders;
  • Affidavits that demonstrate that one parent has a record of conduct that could negatively impact the emotional or physical health of the child; and/or
  • Medical and psychological stability of both parents.

Affidavits that provide detailed information regarding the parent’s relationship with the child, the parent’s capability to accommodate the child’s physical, emotional, and educational needs, and any concerns or matters pertinent to the other parent’s capacity to meet their parental responsibilities are deemed to be of value when applying for an order for sole parental responsibility in Australia.

How our Family Lawyers can help you

Consulting experienced family lawyers for legal advice and representation can be extremely beneficial when you’re involved in child custody cases or any other parenting matters.

Family lawyers provide crucial guidance and support, helping you navigate the complexities of the family law system, advocate for your child’s best interests, and avoid common mistakes that could jeopardise your case or your child’s wellbeing.

A family lawyer can assist in:

  • Negotiating custody arrangements;
  • Preparing legal documents;
  • Representing you in court if necessary;
  • Helping you gather the necessary evidence to support your claim for full custody;
  • Ensuring that your case is presented in the best possible light; and
  • When in doubt, it’s important to seek legal advice from a qualified professional.

With the right legal representation, you can confidently pursue full child custody, knowing that your child’s best interests are being protected every step of the way.

If you’re involved in a parenting matter, such as living and parenting arrangements, you can discuss your situation with our family lawyers today.

We help people Australia-wide with family law matters and we’re here to help you today. Call us on 1300 667 461 or book a free, no obligation consultation by using the button below.

Profile picture of James Lee a Sydney family lawyer

James Lee

Author
James has practiced family law since his admission to the legal profession. He has extensive experience in all areas of family law, from property and parenting to child support, spousal maintenance and binding financial agreements.

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