It is important to have a good understanding of what exactly the courts consider before engaging in any family law proceedings in relation to your children. These considerations apply to all children, regardless of whether the parents are married or have ever cohabited or whether they are same or opposite sex.
The courts consider a variety of factors when determining what is in the best interests of the child. They fall broadly into two categories:
There are only two primary considerations when determining the best interests of a child. They are:
The court is required to balance these two considerations, but will give more weight to the need to protect children from harm. If the benefit of having a relationship with a parent is outweighed by the risk of that relationship causing some harm to the child, the relationship will take a back seat.
It is important to understand in relation to point 1, that the right to have a meaningful relationship with both parents is a right of the child in this case, not the parent. Many parents fall into the trap of thinking about their right to see their children without considering what is in their best interests.
The list of additional considerations is much longer than the primary considerations at thirteen, although the list contained in the Family Law Act is non-exhaustive. Additional considerations are:
As noted, this list is not exhaustive and the court may also take into account any fact or circumstance it considers relevant. You may notice that some of the additional considerations overlap with the primary considerations. Courts have noted that the primary considerations will not overcome the additional considerations in every case and that an overall assessment of both sets of factors must be undertaken.
What is in the best interests of the child doesn’t always accord with what you believe is in their best interests, or even what you feel to be fair or just. In certain cases, even where one parent has engaged in unsatisfactory behaviour, like involving young children in the proceedings, if the circumstances dictate it that parent may end up with care of the children. This does seem unfair: after all, why should that parent be rewarded for bad behaviour? But as noted above, it isn’t necessarily about what’s fair, but what’s right for the children.
This can be difficult for parents to come to terms with. After all, all other things being equal, parents do have a right to have a relationship with their children and see them regularly. Unfortunately, this is not the approach the courts take. This is why, in parenting matters, it is important to remain focused on your children and what they need. Don’t attempt to involve them in your disputes and, where possible, remain open to compromise with the other parent.
Madison Marcus Law Firm produced this article. It is intended to provide general information in summary form on legal topics, current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.