How You can get Custody of Your Children

How You can get Custody of Your Children

The saying goes; “there is more than one way to skin a cat”, as if you would want to.  But there are many ways you may want to sort out the living arrangements for your children.

Your options:

  • Kitchen table negotiations
  • Third party neutral assisted negotiations (mediation or other ADR)
    • Without lawyers attending
    • With lawyers attending
    • Collaborative Law
      • With lawyers only
      • With interdisciplinary collaborative professionals
        • Counselling
        • Financial
  • With an interdisciplinary team
  • Cooperative Law
    • With lawyers
    • With interdisciplinary collaborative professionals
      • Counselling
      • Financial
  • With an interdisciplinary team
  • Lawyer Negotiated Settlement
  • Private Arbitration
  • Litigation

Firstly think about whether you wish to be the spectator who pays a lawyer to go into battle with the lawyer for your ex-partner, or, you want to control negotiations with the support of a lawyer to get the best result for your children and you?  The difference in the cost, both financially and psychologically is worth your investigation.

You do need legal advice, even if you sort out parenting arrangements between you and your ex-partner, but you want the advice that suits what you want to do.  Once you get legal advice the next step in the process is for you to go to mediation with a Family Dispute Resolution Practitioner (FDRP).

You can contact a Family Relationship Centre (FRC) where all or part of the mediation is free, or you may decide to go to a private FDRP.

Pros and Cons of going to a private FDRP or the FRC include:

 

FRC

The FRC will almost certainly cost you less than the private FDRP.

The FRC also has other services available that may assist you.

The FRC is however likely to take a lot longer than mediation with a private FDRP.

The FRC is unlikely to allow your lawyer to attend mediation with you, although you may need advice about financial issues, e.g. Child Support and Centrelink payments.

 

Private FDRP

You will get an appointment quicker with a private FDRP.  The whole process will be completed faster.

Most FDRPs will allow you to have your lawyer with you during the mediation.    You need to have  legal advice on financial issues and other issues about yours and your children’s best interest before signing any agreement, so why not have the lawyer with you at mediation?  It does cost extra but if you are able to finalise and sign an agreement because the lawyers are present you will save more than the extra it costs.

The FDRP will however be more costly than the FRC.

Any other professional the FDRP suggests you see may charge more than the FRC although, you may be able to get any counselling services through MediCare.

 

NEXT STEP

If you do not negotiate parenting arrangements for your children at mediation you will get a Section 60I Certificate from the FDRP and then the difference in the processes ahead of you become huge.

One important thing to remember is that your ex-partner is no longer your partner but you are joined together as parents for the life of your children.  They will want both of you to be there at their special occasions.  Try to lay the foundation now that will avoid your children being anxious about whether you will both be there at their next school play, not to speak of the future when your first grandchild is born and the joy for your child is overshadowed by the concern about which one of their parents will arrive at the hospital first, or worse still, arrive at the same time.

If you have your ongoing parenting in mind you are likely to make choices that will be less psychologically damaging to you and the children and cost you less financially.

If you have engaged a trained collaborative lawyer you can discuss, collaborative law, cooperative law and other forms of negotiated settlement.

If you prefer to have a lawyer negotiate with your ex-husband’s lawyer on your behalf, lawyers will negotiate for you. Most parenting arrangements are negotiated.  Only a very small percent of parenting arrangements are determined by a Court.  But there may come a time when you have to accept that the negotiations are deadlocked.  If so, one option is for you to commence Court proceedings.

If you reach such a deadlock or you would you prefer to have your parenting arrangements determined by the Court, you still have choices about how your matter is litigated.  If your lawyer is adversarial and likes to get, what they consider the best results for you, they may spend considerable time scoring points but you pay for that financially, and psychologically.  Acrimony is likely to escalate between you and your ex-partner, which will also have undesirable impact on the children.

It does not have to be this way.  In fact the Judges in the Family Courts are scornful of lawyers who behave this way.  Lawyers should be respectful to each other and focus on using their skills to get the quickest, least expensive result that you and your children need.

Once you start Court proceedings, there are many steps ahead of you.  Also, just because you start Court proceedings it does not mean you cannot come to your own agreement at any time during that process.

 

The Court Process

  1. To start the Court proceedings you file an Initiating Application and an Affidavit along with the Section 60I certificate from the FDRP.
  2. Your ex-partner is not likely to be happy about what is in your Affidavit.  He/she must file a Response and an Affidavit, unless they do not oppose the orders you have asked the Court to make.  You are not likely to be happy about what is in his/her Affidavit.  The escalation of the acrimony between you has begun.
  3. The first Court date will be your next opportunity for you to talk with your ex-partner with both of the lawyers present to see if you can define your issues and reach an agreement.  If you reach an agreement the Judge will make Consent Orders.  If you can’t reach an agreement the Judge is likely to:-
    1. Give directions on what needs to be done to get the matter ready for trial;
    2. Conduct an interim hearing to make orders that will be in place until the final hearing, or
    3. Finalise an application if for example it is an application for a passport or for a recovery order.
    4. Between the first Court date and the Trial many other things can happen including seeing a Family Consultant, having a Family Report done and attending further mediation.  Just before the final hearing a great deal of additional work will be done to update Affidavits. Your Affidavit and Affidavits from others in support of your application must be updated and a Case Outline Document prepared.
      The preparation for trial is very costly and it usually opens old wounds that are extremely distressing.  It usually has tremendous adverse psychological impact on you and the children.
    5. The Trial can be up to 2 years after the application is filed.  Less than 5% of applications continue to a Trial.  Less than half of that 5% are fully heard by the Court for the Judge to make a decision.  In the highly emotional environment of the Court parties usually settle.  They have paid a huge amount of money to get to this stage.  They face the future with their finances divided between them and substantially reduced by the cost of the legal proceedings.  Frequently they are also emotionally exhausted.
    6.  They are often more dysfunctional as parents than they have ever been.  They are often aware of changes in their children caused by the process they have put their children through as well as themselves.  Ahead they will somehow have to make many joint decisions in the best interest of their children.
      If the matter is determined by the Court, as well as all of the above, the Orders made by the Judge will be a compromise but not the compromise the parties would have preferred.  Hopefully, it will be the end of the vitriolic battle and the parents and the children will move on and re-build their lives.  It does not have to be like this.