Shared custody

What is Shared Custody?

  |   Family Law

Shared custody is the joint arrangement for the residency, visitation, care of and communication with children from a separated relationship. Funnily, it’s a term no longer used in the legal profession, although it still exists in the mainstream media and public domains.


These days, we tend to refer to shared custody as equal shared parenting responsibility – which is also slightly more self-explanatory.


Equal shared parenting responsibility


With equal shared parenting responsibility, both parents should consult each other about the long term, important decisions that affect their children.


This may include such things as where the children will go to school, any religious and/or cultural beliefs and values that the children will need to follow, decisions relating to medical treatments and procedures (if required), and the involvement of extended family in the lives of the children.


Both parents are presumed to have equal shared parental responsibility for their children until they turn 18 years of age.

Equal shared parenting responsibility differs from equal shared care – which only relates to the equal amount of time children spend with each parent.


How it works


Equal shared parenting responsibility can be a consensual, mediated or court-ordered arrangement, depending on the nature of the case.


Where an agreement cannot be reached by consent, it can be helpful to engage mediators to help create a parenting plan.


Obviously the benefits of a consensual agreement are emotional (less stress on litigants and family) as well as financial (lower legal fees due to less litigation).


Best interests of the child


When determining a parenting arrangement, the court generally presumes that it is in the best interests of the children for parents to have equal shared parental responsibility.


However, the law does not say that children must spend equal amounts of time with each parent after their parents separate.


What the law does in fact say is that where the parents have equal shared parental responsibility, the parents (and the court) must consider whether an arrangement where the child spends equal time with each parent is both in that child’s best interests and ‘reasonably practicable’.


The reasoning for this presumption is set out in the Family Law Act 1975 (Cth) itself.


The fundamental points ofSection 60B are extracted below:


  • That children have the right to know and be cared for by both their parents, regardless of their parents’ marital or relationship status.
  • That children have a right to spend time and communicate on a regular basis with both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).
  • That parents jointly share duties and responsibilities concerning the care, welfare and development of their children.
  • That parents should agree about the future parenting of their children.
  • That children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).


When to say ‘no’ to shared custody


There are some cases where living or sharing time with one parent is not in the child’s best interests, and these factors include where there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:


  • Abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family).
  • Family violence.


When this happens, the court considers whether the child should live with one parent and spend “substantial and significant” time with the other parent.


These cases may result in one parent having primary or full responsibility over the other parent.


Maintaining the status quo


Another significant consideration the court looks at is maintaining the status quo of the children.


This may involve considering who the children live or spend time with generally, so as to continue with the caring arrangements the child has currently in place. While this may assist with temporary arrangements, overall the court will apply the presumption of equal shared parenting responsibility as being paramount in the best interests of the child.


At Amicus Lawyers, we can provide advice and guidance on all matters relating to equal shared parenting responsibility – helping you to devise orders by consent or guide you through any family dispute resolution process to produce the best outcome for your children.