Arranging child custody agreements can be one of the most difficult parts of a divorce or separation, particularly if the split wasn't amicable.
If you are on good terms with your former spouse, the process can be fairly simple – provided you both agree on child custody terms.
When this is the case, it is not necessary to go through the courts to formulate an arrangement. Instead, you may make a parenting plan or obtain consent orders approved by a court.
However, seeking out family law advice is still recommended even in circumstances where divorces are not acrimonious, as qualified lawyers will be able to guide you through the parenting plan process with ease.
Parenting plans are written agreements signed by parents that set out the arrangements for child custody. And unless a court specifically forbids it, former spouses can make changes to child custody through the plan, when and where necessary.
A parenting plan is jointly agreed, meaning there is no requirement for either party to go through the courts. However, a parenting plan is not a legally enforceable document, and it is important to educate yourself on such matters before entering into this kind of agreement.
A consent order differs slightly in that it is a written child custody agreement that is approved by the court and covers areas such as parenting arrangements, financial obligations and property and maintenance duties.
Consent orders have legal weight in that they are equivalent to orders made by the judicial officer after a court, although former spouses can apply for consent orders to be made without attending court.
The Australian government's Family Law Courts website advises people to seek out divorce lawyers in order to understand the implications of consent orders.
When parties can't agree
In cases where parents cannot agree child custody arrangements, the courts will intervene and can make orders to set out the parental responsibilities of each party.
However, before applying to a court, it is the obligation of the parents to make a genuine effort to resolve conflict via family dispute resolution.
Those eligible to apply for a parenting order to be made include either or both parents of the child, the child themselves, a grandparents, or any other individual responsible for the child's care, welfare and development.
A court will not usually hear an application for parenting orders unless an accredited family dispute resolution practitioner has provided a certificate for the application. In some circumstances, this requirement can be waived.