When facing child custody disputes that involve significant risks of harm to a child, understanding how to secure full custody, may be crucial for ensuring the best outcome and protection for your child. Gaining sole custody involves undertaking complex legal processes and demonstrating that it is in the best interest of the child.

In Australia, the Family Law Act prioritises the best interests of the child in all custody decisions. While the law encourages both parents to be involved in their child’s life, there are circumstances where full custody may be necessary.

At Ramsden Family Law, we are committed to helping you navigate this complex legal landscape with compassion and expertise.

Below, we provide a comprehensive guide to securing full custody of your child.

What is Full Custody in Australia?

In Australian family law, “full custody” is not the official legal term. Instead, courts can award sole parental responsibility and decision making when one parent is granted exclusive rights to make major decisions about the child’s upbringing.

These decisions cover areas such as education, health care, and religious practices. Full custody also often means sole physical custody, where the child primarily lives with one parent, while the other parent may have limited or no visitation rights.

The court’s ultimate decision is always based on what is in the child’s best interests, and achieving full custody requires demonstrating that this arrangement will best support your child’s welfare and development.

Find out more about our child custody services.

Reasonings Behind Seeking Full Custody

In Australia, the grounds for seeking full custody of a child are firmly rooted in the best interests of the child, as outlined in the Family Law Act 1975. When determining custody arrangements, the court considers several critical factors to ensure the child’s welfare is prioritised.

These factors include:

  • The child’s physical, emotional, and psychological needs: The court assesses how each parent can effectively meet these needs.
  • The capacity of each parent to provide for the child’s needs: This includes evaluating the parents’ ability to offer a stable and nurturing environment.
  • The history of the relationship between the child and each parent: The court looks at the existing bond and the quality of the relationship.
  • The impact of family violence or abuse on the child: Any history of family violence or abuse is a significant consideration, as the child’s safety is paramount.
  • The child’s views and wishes: If the child is mature enough, their preferences are taken into account.

To seek full custody, a parent must convincingly demonstrate that sole parental responsibility and decision making and exclusive living arrangements with them are in the child’s best interests. This often involves providing substantial evidence of the other parent’s unsuitability, such as a history of significant family violence or neglect, or detailed documentation of the child’s specific needs and how they can best be met.

Understand the Legal Standards and Grounds for Sole Custody in Australia

The cornerstone of Australian custody law is the best interests of the child. Courts consider a range of factors to assess what custody arrangement will serve this principle, including:

  • The child’s relationship with each parent and other significant people, such as grandparents.
  • The child’s safety, particularly if there is any risk of harm, including exposure to domestic violence or neglect.
  • The capacity of each parent to provide for the child’s emotional, intellectual, and physical needs.
  • The child’s preferences, especially if they are mature enough to express an informed view.

Court orders regarding custody are legally binding, ensuring that the agreed-upon arrangements are enforceable and must be adhered to by both parents.

At Ramsden Family Law, we help you present a strong case that proves your custody arrangement prioritises your child’s well-being.

Parental Responsibility and the Family Law Act

Parental responsibility is a cornerstone of Australian family law, defined comprehensively in the Family Law Act 1975. It encompasses all the duties, powers, responsibilities, and authority parents legally hold concerning their children. This includes making crucial decisions about the child’s upbringing, education, health, and overall welfare.

The Family Law Act also introduces the principle of equal shared parental responsibility. Prior to May 2024, there was a presumption that it was generally in the child’s best interests for both parents to share these responsibilities. However,  in recent reforms the courts will now consider if a parent who has primary care should have sole parental responsibility and decision making.

In situations where one parent is unable to adequately provide for the child’s needs or poses a risk to the child’s well-being, the court may grant sole parental responsibility to the other parent. This ensures that the child’s safety and welfare are prioritised, allowing one parent to make all significant decisions regarding the child’s life.

Gather Evidence to Support Full Custody

If you seek full custody, you must provide substantial evidence to demonstrate that it is in your child’s best interests. Providing substantial evidence is crucial in convincing the court to grant sole child custody to one parent.

This might include:

  • Evidence of Risk: If you believe the other parent poses a risk to the child, you must provide evidence such as police reports, witness statements, or medical records documenting abuse, neglect, or violence.
  • Documentation of Care: Prove that you have been the primary caregiver by providing school reports, medical appointment records, and other documentation that shows your involvement in the child’s life.
  • Stable Environment: Evidence of stable home life, including proof of housing, income, and support networks, can strengthen your case.
  • Witness Testimonies: Support from friends, family, or professionals who can attest to your suitability as the primary custodian can be highly beneficial.
  • Expert Reports: This may mean you obtain a family report by a family consultant or clinician to make recommendations on what orders may be in the child’s best interests.

This evidence will help build a convincing case for full custody, ensuring that your child’s safety and well-being are prioritised.

Attempt Mediation and Family Dispute Resolution

In most child custody cases, you are required to attempt Family Dispute Resolution (FDR) before applying for full custody through the courts. FDR allows both parents to negotiate and create parenting arrangements that work for both parties, guided by a mediator. This process can help avoid the emotional strain and cost of court proceedings while still achieving a fair arrangement for the child.

If FDR fails to result in an agreement, you will be issued a Section 60I Certificate, which permits you to proceed to court.

How to Apply for Full Custody – File a Parenting Order Application

If mediation does not lead to a suitable arrangement, the next step is to file for a Parenting Order. This involves lodging an application with the Federal Circuit and Family Court of Australia.

If seeking Interim and Final orders your application must include:

  • An initiating application with the interim and final court orders that you are seeking from the court.
  • A detailed affidavit outlining your case and why you bbelieve it is in the child’s best interests for you to have full custody.
  • Your affidavit will include vidence to support your claims, including any documentation gathered about the other parent’s inability to provide adequate care or risks posed to the child.
  • A Notice of Child Abuse, Risk or Family Violence. This document sets out the types of risks you allege the other parent poses to the Child. This document also may notify Family and Community Services re any risks.

It is highly recommended that you seek legal advice to ensure that your application is thorough and accurately represents your case for full custody.

At Ramsden Family Law, we guide you through this process, ensuring that your application is robust and that your affidavit clearly communicates the evidence supporting your claim for full custody.

READ MORE: How Final Are Final Parenting Orders?

Prepare for Court Hearings

If your case proceeds to court, both parents will have the opportunity to present their arguments.

The court will examine:

  • The evidence provided by both parties.
  • Reports from any experts, including family consultants, who may interview both parents and the child to assess the situation.
  • The level of cooperation between parents and shared parental responsibility for the child’s best interests.

At Ramsden Family Law, our experienced lawyers will carefully examine the evidence to determine whether the spouse getting sole custody is in the child’s best interests. Their legal team will ensure that your case is presented clearly and effectively, maximising the chances of a favourable outcome.

High-Conflict Cases and Complex Circumstances

In cases where there are significant conflicts—such as parental alienation, drug or alcohol abuse, or domestic violence—the legal process may become more complicated. In such situations, the court may order supervised visitation or restrict contact between the child and the other parent.

These sensitive cases require experienced legal representation to navigate the complex emotional and legal challenges involved. We have extensive experience handling high-conflict child custody cases and are committed to ensuring the best outcome for your child.

READ MORE: Ensuring Child Safety: Unpacking Unacceptable Risks in Parenting Matters

Rights and Responsibilities of a Parent with Full Custody

A parent granted full custody of a child assumes significant rights and responsibilities. With sole parental responsibility and decision making, this parent has the exclusive authority to make major decisions about the child’s life, including their education, health care, and overall welfare. Additionally, having physical custody means the child resides with this parent exclusively.

However, these rights come with substantial responsibilities. The parent with full custody must ensure the child’s physical, emotional, and psychological needs are met, providing a safe and nurturing environment. They must make decisions that are always in the child’s best interests, even when these decisions are challenging or unpopular.

Moreover, while the parent with full custody has significant control over the child’s upbringing, the court may still order that the other parent has supervised visitation or other forms of contact with the child. This ensures that the child maintains a relationship with both parents, provided it is safe and beneficial for them.

Overall, having full custody is a profound responsibility, requiring a deep commitment to the child’s well-being and a willingness to make decisions that support their best interests.

READ MORE: Understanding Supervised Time: Safeguarding the Well-being of Children

In Summary

Securing full custody of a child in Australia requires a strong understanding of the legal process, compelling evidence, and the right legal support.

At Ramsden Family Law, we offer compassionate, expert guidance throughout this journey. Whether you are negotiating a Parenting Plan or preparing for court, our team of accredited family law specialists is here to ensure that your child’s best interests are protected.

Contact us today, and let us help you put your best foot forward toward protecting and enriching your child’s future.

Posted in: Latest News

September 25 2024