How does a court determine what are the child’s best interests?
All child custody decisions are focused on ensuring the best interests of the child are made. Generally speaking, it’s often in the child’s best interests to have a loving relationship with both parents, but arranging such relationships can be the main challenge in resolving a child custody dispute.
There are circumstances when a court will take the view that it is in the child’s best interests to no longer see one, or both, of their parents. However, this is in a minority of cases and will usually only where there is a history of physical, sexual or psychological abuse.
The decisions you make now in relation to your child custody arrangement will affect your child’s development and potentially your future relationship with them. Each decision should be made carefully with the help of professionals who know and understand the consequences of every action.
There are two tiers of considerations the Court will take into account. These can be found under Section 60CC of the Family Law Act 1975 (Cth).
- The benefit to the child of having a meaningful relationship with both parents
- The need to protect the child from psychological or physical harm from preventing exposure or subjection to abuse, neglect or family violence
The Court places greater weight on the necessity to protect the child from harm.
- the child’s own views and how their maturity and level of understanding affects their view
- the child’s relationship with each parent, as well as other relevant family members such as grandparents or other relatives
- the willingness and ability of each parent to foster an ongoing and close relationship between the child and the other parent
- the likely effect of the change in circumstances on the child, including separation from the parents and/or relatives they are living with currently
- the general maturity, lifestyle, sex and background of the child and other characteristics considered relevant to the case
- the right of an Aboriginal or Torres Strait Islander child to their culture and whether any proposed parenting orders would hinder this
- any family violence involving the child or a member of their family
- the extent to which each parent has or has not previously fulfilled their parental responsibilities, such as whether they have:
- participated in long-term decisions regarding the child
- spent time with the child
- met their obligations to maintain the child, and
- facilitated the other parent’s involvement in the child’s life
It is clear that the ‘best interests’ of the child are different for each case. The Court will consider the circumstances of your separation in order to decide what is best for your child.