Child Custody matters are likely to be one of the most difficult, stressful and traumatic experiences you will ever go through.
Family court custody disputes can turn the most caring and loving parents into soldiers of war, battling each other for the ultimate prize. The problem is that children are not assets to be won.
By approaching a child custody dispute in a way that treats children as assets and in a way that fails to place your child’s best interests first, this has the potential to cause significant damage to your child’s welfare and it will impact on the outcome of your child custody case.
Are you wanting to ensure the best possible outcome for your children in your child custody dispute?
Read on to find out the top 10 things people do wrong in child custody matters:
1. Talking negatively about the other parent to your child
Talking negatively about the other parent to the child is the most common thing we see in bitter family court battles.
It could be as accidental as making a comment about the other parent to your mum in the child’s presence or as purposeful as telling the child that their mother/father has abandoned them and does not love them anymore.
There are no positive consequences of talking trash about the other parent to your child. No child wants to hear you say negative things about the other parent. Ultimately, saying negative things to your child about the other parent has the potential to have a negative impact on your child’s wellbeing. When you verbally bash the other parent you may as well be bashing your own child. This is because your child takes that comment as being a negative comment about themselves.
Negative trash talk to your child about the other parent will affect your child’s self-esteem, mental health and future relationships.
Furthermore, it has the potential to significantly undermine the child’s relationship with the other parent.
Finally, the court will perceive you in a negative light if you are badmouthing the other parent to your child. It is hard to get away with doing this as inevitably the child will likely go back and tell the other parent.
The court will read both of your affidavits and will form a view based on your interactions with the other parent. If the other parent’s affidavit is full of examples of you talking ‘trash’ about the other parent, this will cause the Judge to form a negative view about you. If you are talking about the other parent in such a way which causes the Court to form the view that you are unable to encourage the child’s relationship with the other parent , this is likely to have a significant negative impact on the outcome of your child custody dispute and in some circumstances, it may result in a change in residence.
2. Talking to your child about adult issues, saying/doing things to make your child feel sorry for you/align with you
Parental alienation involves intentionally saying and doing things to cause your child to hate the other parent or to cause your child to feel sorry for you and align with you by discussing adult issues with them. Examples include crying in front of your child after an interaction with the other parent, telling your child that the other parent left you, that the other parent treated you badly, that they hurt you or cheated on you or telling your child that their house is being sold because the other parent is ‘forcing’ you to do so.
The worst form of parental alienation occurs where a parent takes things a step further and tells their child lies about the other parent in order to cause the child to form a negative view of the other parent, for example, that the other parent sexually abused the child.
All of these types of behaviours have the power to have disastrous consequences for a child’s mental health and are likely to seriously undermine the child’s relationship with the other parent.
In the worst cases of parental alienation, the court may determine that it is in the child’s best interests to live with the other parent that the child has been alienated from.. This usually occurs in circumstances where the court concludes that a change of residence is the only way of ensuring that the child has a meaningful relationship with the other parent.
3. Failing to communicate with the other parent
Following separation, we understand that communicating with the other parent can be very difficult, particularly if the relationship broke down due to them exposing you to domestic violence.
In circumstances where the other party is an ongoing risk to you and to your children’s safety, we are not suggesting that you would or should maintain communication with them.
If you were exposed to coercive and controlling behaviour by the other parent during your relationship, we highly recommend having very clear boundaries in place with respect to your communication with the other parent, for example, by having all communication with the other parent in writing, e.g. by email. You should minimise any direct contact with your abuser in order to minimise the impact of such communication on your mental health.
However, in most situations following separation, maintaining an open line of communication with the other parent in relation to your children is workable and in your children’s best interests.
Why is this? Because your children need you to communicate freely and easily so that you can each participate in your child’s day to day life. This enables your children to thrive.
Without an open line of communication to the other parent, how are you going to discuss things like routine and discipline of your children in order to maintain some consistency between both households? What about when your children are sick? When an emergency arises? When your child wants to go to a birthday party? What about when there is an extra-curricular activity that falls on the other parent’s weekend? If you and the other parent can’t communicate about the day to day decisions, your children are likely to suffer. Sometimes, your child ends up becoming the messenger to parents who can’t communicate effectively which is likely to cause your child stress and it will ultimately have a detrimental impact on your child’s mental health.
When parents do not communicate effectively, what we see in the two separate households is that parallel parenting occurs. Parallel parenting occurs where parents function as if they are the sole parent of the children and they end up parenting very differently from one other.
When children get older and become more rebellious, they learn to use the lack of communication between you and the other parent to their advantage by playing one parent off against the other. Examples of this include statements such as “But Mum lets me stay up until 10pm” or “But dad lets me watch M rated movies”. The child then asserts control over the parent by telling you what to do. This makes it extremely difficult to discipline your child when the rules in Mum’s house are different to the rules in Dad’s house.
It is extremely important that both parents have similar rules and routines in both households for this reason. In parallel parenting households we tend to observe that children have much more difficulty adjusting when moving from one parent’s household to the other parent’s household. A child’s adjustment difficulties are usually exhibited through ‘bad behaviour’ by the child immediately after the changeover period. Many parents mistake this type of behaviour for separation anxiety when this is rarely the case (except for very young children). Separation anxiety experienced by a child who is not an infant, is usually more to do with separation of your child from the stability and routine they are familiar with as opposed to the child experiencing difficulty separating from you to go with the other parent.
Take home message – having an open line of communication with the other parent as well as having similar rules and a routine that is consistent between both households, is very important to ensuring stability and routine for your child. This will minimise any adjustment difficulties your child experiences when moving from your household to the other parent’s household.
Putting aside all of the above, if you refuse to speak to the other parent, the court is likely to assess that you are not willing to encourage the relationship between your child and the other parent, which will have a negative impact on your case and it may even result in you losing custody of your child.
4. Failing to discuss and agree on long term decisions for your child
Long term decisions are decisions you are required to discuss and agree upon with the other parent where you both have equal parental responsibility for your child. These include for example, what school your child goes to, whether your child has medical treatment and what religion they practice.
Relocating your child’s residence without consent is another long term decision that should not be made without consultation with the other parent.
If you make big decisions in relation to your child without the knowledge or consent of the other parent, for example, by changing your child’s school, this is a big no no and the Court is likely to have real concerns about your willingness to co-parent with the other parent as well as your willingness to involve the other parent in decisions affecting your child’s life, in the future.
If you have relocated your child’s residence without the other parent’s consent, the court has the power to order that your child return to the location they were relocated from, even if that means that the child will need to live with the other parent.
5. Breaching court orders
Breaching court orders is a serious matter. If you are found guilty of contravening a court order, without a reasonable excuse, the penalties can include makeup time for the other parent and you may be hit with a legal costs order. For more serious contraventions you may be ordered to do community service, probation or you could even be sent to prison.
Where a parent continuously contravenes a court order, and the court is of the view that that parent is not able to encourage the child’s relationship with the other parent, in addition to the above consequences, the court may reconsider whether the current parenting orders are in the child’s best interests, and the court could even order a change of residence.
6. Telling your child that they get to choose their living arrangements
This is a very common scenario. Time and time again we see parents who have court orders, telling their children once they hit a certain age (e.g. 13/14) that they are now old enough to choose their living arrangements. This is far from the truth. Your court orders do not ‘expire’ when your child hits their teens.
Furthermore, even if you do not have a court order, your child should never be hit with the responsibility of choosing their living arrangements. That is a decision to be made by you the parents, in the exercise of your joint parental responsibility. In the same way that you would not let your child decide whether or not they go to school and whether or not they do their homework or eat their veges, you should not be letting your child make decisions affecting their living arrangements.
It is your ongoing obligation to actively encourage your children’s relationship with the other parent and you must do that by actively facilitating them spending time with the other parent, even if your child is saying they do not want to spend time with the other parent.
The court will look down upon any parent who tells their child that they get to choose where they live.
7. Withholding a child from the other parent
Not allowing the other parent to spend time with your child is the worst thing you can do and yet the most common in any parenting dispute.
The exception to this is where a child is at risk of harm in the care of the other parent, in which case withholding your child from the other parent is in your child’s best interests.
However, if there is no risk of harm to your child in the care of the other parent you should be facilitating the child having a relationship with the other parent. If you withhold your child from spending time with the other parent, and you do not have a very good reason, the court will form a very negative view of your conduct and in the most serious of cases, where the court cannot be satisfied of your ability to co-parent and encourage the child to have a relationship with the other parent, the court may conclude that a change of residence is in your child’s best interests.
8. Lying to the court about your drug/alcohol use
You may be surprised to learn that many parents take drugs and drink excessive amounts of alcohol. It is one of the most common allegations made in the family court in child custody disputes.
It is important to note that the court is not worried about your substance use. The Court only cares if your substance use affects your children and your ability to be a capable parent.
There are situations where a court can be satisfied about your ability to parent, if you can show the court you can parent your children effectively despite the fact that you are doing drugs.
However, in most instances, drugs tend to have a negative impact on your ability to function and therefore your ability to look after your child.
If you do drugs and drink alcohol, denying that you do so is likely to have a negative impact on your child custody dispute. It is better that you be open and honest about your drug/alcohol consumption then to have it come out when you take a hair follicle test / CDT test.
It is much better in your child custody dispute to be open and honest about your substance problem and to take positive steps in the right direction by getting clean / sober and by enrolling in programs to show your intention to remain clean / sober. This will show the court that you are on the right track to recovery and your ongoing rehabilitation will assist to cure the Courts concern of you relapsing in the future.
If you lie about your abstinence and it comes out later that you are not clean, the court is going to have serious concerns about your ability to get clean and to remain clean in the future.
9. Coaching your child at family report interviews
Telling your children what to say during family report interviews is a big mistake.
The Family report is a very important piece of evidence in a parenting case. Judges will generally put significant weight on the recommendations of the Family Report. A such a Family Report can make or break your parenting application.
As a result, parents tend to over prepare and make the mistake of telling their children what to say to the Psychologist/Social Worker.
Family Report Writers are very experienced at what they do and can generally tell when a child has been coached because of the way that the child reports information to them.
If you coach your child and the Family Report Writer says in their report that you coached your child, the report writer is likely to have serious concerns about your ability to encourage the child’s relationship with the other parent and their recommendations will be coloured by this assessment.
10. Not putting your child first in parenting decisions
It is not uncommon for parents to prioritise their own self interest ahead of their children’s best interests.
This may occur for example in situations where a parent is saying they want shared care when their true agenda is that they want to pay less child support.
Another example is where the other parent wants to change the child’s school to another school, not because it is a better school for the child, but because it is closer to the other parent’s home/work.
The paramount consideration of the Court when making parenting orders is the best interests of the child.
If you cannot pinpoint the reason why the order you are seeking is in your child’s best interests (separately from your own self-interest) then you need to reassess whether you should be seeking that order.
The court will only make the order you are seeking if it benefits your child and if after having considered all the alternatives, that order is in your child’s best interests.
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