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Fathers Rights in Child Custody - Equal Access is Not the Default

In our experience, many people believe that equal time is the norm in child custody arrangements. That’s not the case.

The Family Court operates on one key principle – the best interests of the child. While it’s generally beneficial for a child to have good relationships with both parents, that’s not necessarily the same as spending equal time with each parent.

In fact, depending on the age of the children, equal time may be inappropriate.  

Psychologists generally say that children younger than 5 or 6 need at least one primary attachment. In a traditional home, they have two primary attachments. When parents separate, equal time can lead to arrangements where there is no primary attachment at all. Very young children may change houses frequently and not spend enough time with either parent.

Historically, mothers have been the primary carers for young children. In most cases, when parents separate the mother is still the primary carer. She also often stays in the family home. Children have a right to see their father regularly, but there’s also a need to maintain that primary attachment. For a child up to the age of about five or six, spending more time with their mother in a home they know is often the best outcome.

Older children can manage equal time arrangements much better, but equal time arrangements will only work when parents can act co-operatively, and put their child’s needs above any animosity to their ex-partner.  Few people actually manage to do that.

It’s normal to vary court orders as children grow older

As children grow up, they move to spending more time with their father. It’s a gradual process.

It’s important to understand that court orders will usually change over time. A judge is very reluctant to put orders in place for a two year old which go right through to the age of 16.  Fathers who agree to unequal child custody arrangements now are not signing away their rights forever.

It’s easier for fathers to accept less access now if they can see how it will change, but on the other hand, it’s hard to plan future custody in detail. When a child is 21 months or so, it’s hard to know what sort of child they will become. Some will be ready for an equal time arrangement by the age of 12 – some won’t.

Even if the future is uncertain, remember that custody orders set now are not written in stone forever.

Try to plan parenting arrangements in advance

It’s not always possible to sort out time with the children in advance. You may be caught unawares, or you may have difficulty agreeing with your ex-partner.

But whenever possible, we recommend seeing us (or another family lawyer) before you make any agreements. It’s harder for the children – and for others too! - if you have to change arrangements once they are set up. That can lead to extra conflict during a difficult time, which is tough for everyone.

In one recent case, a 21 month old child had been spending five nights a fortnight with his father. We advised the father and his parents (whom he was staying with) that this was inappropriate. They were unhappy with this at first.

We discussed what is in the best interests of the child and what psychologists say is appropriate at different ages.

We reassured them that access would change over time, and suggested at least one night a fortnight initially, moving very quickly to two nights. Then by about the age of four, it would probably be five nights a fortnight again.

With education and understanding, we were able to develop parenting arrangements which protected both the father’s rights to see his child and, most importantly, the overall wellbeing of that child.

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NOTE: In most of the divorce cases we handle, the mother is the primary carer. This article is written from that perspective. There are cases where the father is the primary carer. The same considerations apply, but in reverse.

There are no specific “mother’s rights” or “father’s rights” in child custody disputes. The focus is on what is best for the child or children.