Child custody, care and control, and access

The welfare of the child comes first

When parents cannot agree on arrangements for their children, the Family Justice Courts decide based on what is best for the child, not on what either parent would prefer. The courts do not automatically favour mothers or fathers, and the outcome does not depend on which parent earns more.

Factors the court may consider include the child's age and needs, the relationship with each parent, who has been the main caregiver, the stability of each home, and each parent's willingness to support the child's relationship with the other parent. The court generally encourages both parents to stay involved.

Custody: major decisions

Custody is the authority to make major long-term decisions about a child, such as schooling, religion, serious medical treatment and relocation.

• Joint custody: both parents must consult and agree on major decisions. This is the most common order. If they cannot agree, either can ask the court to decide.
• Sole custody: one parent makes major decisions. It is less common and usually reserved for cases such as family violence, abuse, or a complete breakdown in communication.

Care and control: daily life

Care and control decides who the child lives with and who handles day-to-day matters such as meals, bedtime and homework. It is usually given to one parent. Shared care and control, where the child splits time between homes, is possible but is ordered only where it suits the child and the parents can cooperate closely.

Courts often keep continuity with the parent who has been providing most of the daily care, unless there is good reason to change.

Access: time with the other parent

The parent without care and control usually has access to the child. Access can be liberal, reasonable or set out in a timetable covering weekdays, weekends, school holidays and festive occasions. Where there are safety concerns, the court can order supervised access or supervised handovers.

Parenting programmes and parenting plans

Parents with a child under 21 are generally required to complete the Mandatory Co-Parenting Programme before filing for divorce. In the divorce, each parent sets out their proposed arrangements for the children in a parenting plan. A clear and realistic plan helps the court make workable orders and can reduce disputes later.

The child's views

There is no fixed age at which a child decides where to live. The court may give more weight to the views of an older and more mature child, but those views are one factor among many. The court may learn about them through a Child Representative, a social welfare report or other child-focused processes, so that the child is not asked to choose between parents.

Relocation and changes to orders

A parent who wants to move overseas with a child generally needs the other parent's consent or the court's permission. The court considers the reasons for the move, the effect on the child's relationship with the other parent, and whether contact can realistically be kept up.

Custody, care and control, and access orders can be varied if there is a material change in circumstances. If a parent does not follow an access order, the other parent can ask the court for help, and the court can make orders such as make-up access or attendance at counselling.

This guide is general information only. Arrangements for children turn on the facts of each family.