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Who will look after the children?

What about the children? Who will look after the children?


When parents separate, one of the first and perhaps the most difficult issues that needs to be dealt with immediately is the arrangements for care of the children. The question I am most frequently asked is, what are the rules about looking after the children? If the parents can agree on what arrangements they want to put in place, then those are the rules. The arrangements might not be perfect and might need to be adjusted over time, as the children grow and as each of the parents’ circumstances change – however, because they are by agreement, you can do that.

How do you make those rules?
If the two of you can agree then you can make an arrangement orally or put it in writing. If you can’t agree then you can request counselling through the Family Court to help you reach agreement about the care arrangements.

Care of Children Act
For those parents who cannot agree about the arrangements for their children, then the Care of Children Act (“COCA”) applies. The COCA sets out the orders that a Court can make and the matters that the Court needs to take into consideration for the care and contact (formerly custody and access) of children and the guardianship rights of the parents.

What is “guardianship”?
A guardian is the person who makes the decisions about the child’s life – decisions like where the child will live, what school it will go to, what medical treatment will it have, what name will it be known by. These are a few of the most important decisions that guardians make. Usually both parents of a child are that child’s guardians.

Under the COCA, guardians must consult with each other and agree on the decisions for the children. If guardians / parents cannot agree on those decisions then they can ask the Court to resolve the dispute between them, the guardians. So, for example, where a parent who has care of a child and wishes to move to a town some distance away which would result in a change in the care arrangements and the non-moving parent does not agree, either of them can go to the Court asking for the Court to resolve that dispute about where the child is to live. These “relocation” disputes are the most commonly disputed guardianship decisions that the Family Court deals with. Be aware, the Court can and often will require parents who have made a unilateral decision and moved away with the children to return to their former location until such time as the Court can, in a considered fashion, deal with the whole question of where the children should live. That decision will be based on the best interests of the particular child in the particular circumstances.

Care and contact
Parents who cannot agree on the care arrangements for their children can ask the Family Court to make a parenting order. A parenting order sets out the times and ways in which the children will be cared for including whether any care or contact needs to be supervised.

Any parenting order made by the Family Court must be based on what is in the best interests and welfare of this particular child in these particular circumstances.

Best interests and welfare
In determining what is in the best interests and welfare of any particular child, the Family Court must take into account the principles set out in the COCA. Broadly, these are:

(a) the child’s parents and guardians have primary responsibility, and are encouraged to agree to their own arrangements, for the child’s care, development, and upbringing;

(b) there should be continuity in arrangements for the child’s care and the child’s relationships with his or her family should be stable and ongoing;

(c) all persons having day-to-day care or contact with the child are to consult and co-operate;

(d) family relationships should be preserved and strengthened;

(e) the child’s safety must be protected and, in particular, he or she must be protected from all forms of violence;

(f) the child’s identity should be preserved and strengthened.

In addition, the children must be given an opportunity to express their views and those views must be taken into account by the Court before making any parenting order.

Mactodd can help you with your parenting queries. If you think any of these situations might apply to you, please contact us.

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