Who Gets Child Custody

How Does The Court Decide Who Gets Child Custody?

If you ask any divorce lawyer which aspect of handling a divorce brings the most amount of stress and upset for their clients, many of them will tell you it is custody of the children. Sadly, when going through a divorce, some parents see their children either as assets or as weapons which they can use against their ex-spouse.

This is not to say that they do not love or care for their children, but as often happens, they lose sight of what is in the best interests of their children, when seen within the context of a divorce, especially if that divorce is acrimonious.

The good news is that when it comes to the custody of children, disagreements that end up being decided in court, are actually in the minority. Thankfully, most parents are able to agree with regards to custody and visitation, often through meetings and negotiations which are conducted through their respective legal representatives.

Another service that can be helpful in enabling the parents to come to an agreement is family mediation. These can provide both parents with advice and can introduce options such as family group sessions, where family and friends of the couple can offer ideas and contribute to the discussion.

However, should no agreement be possible, then it will be for the court to decide what is to happen, and its decision will be based upon the 1975 Family Law Act. That act makes no stipulation with regards to the gender of the parents, and therefore there is no assumption that the mother will automatically be given the main custody of the children.

The Family Law Act operates on the principle that both parents have equal responsibility for their children’s welfare, regardless of the specifics of where the children live and visitation times, for example.

The areas of the children’s lives that the Act sees as those where parents should be sharing decisions are their health, scholastic education, religious education, cultural education, their name, and the arrangements for where the children will live.

What the court will mainly consider is providing the circumstances for any children of the marriage to have a healthy and meaningful relationship with both parents.

They will also ensure that children are protected from neglect, physical harm, or psychological harm. This includes scenarios where any violence is witnessed by the children rather than them being the victim of it.

Several other points will be considered which include the children’s views, the current relationship the children have with parents, grandparents and other family members, financial aspects of custody and visitation, and how well each parent has fulfilled their obligation towards their children’s upbringing thus far.


Obviously, there is the matter of which parent the children will live with, and the parenting time that the other parent will have. Where practical and if in the child’s best interests, a court will seek to make the amount of time a child spends with both his or her parents as equitable as possible.

Whilst the child is likely to live primarily with one parent, the court will order that the other parent has as many days, including weekends, and holidays with the child as is possible. This extends to occasions such as the child’s birthday, school parent’s nights, and other events such as the child appearing in a school concert, or sporting competition.

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