IS APPLYING TO COURT THE ONLY OPTION FOR CUSTODY?
You don’t need to make an Application to the Court to come to a parenting arrangement for your children. If possible, you and the other parent should try to reach an agreement regarding care arrangements. If you are able to reach agreement, you have two options to formalise this:
- Signing a Parenting Plan. A Parenting Plan is a written agreement between parents regarding children’s care arrangements. It is not registered in any court and is not enforceable. Parties will often make a Parenting Plan if they come to agreement at Mediation.
- Applying for Consent Orders. Consent Orders are binding Orders made by the Court regarding the care of children in terms agreed by the parents. Before the Orders are made, the Court must consider whether the agreement reached is in the best interests of the children.
Whether you should enter into a Parenting Plan or Consent Orders will depend on you and your situation. No two parenting matters are the same and there is no one size fits all answer. However, most of the time, Consent Orders are the better option as they are binding on you both. This means that neither parent can withhold the children or unilaterally change the arrangement. Parenting Orders are also a little more difficult to change after they are made. Unless there is a substantial or significant change in circumstances, Orders cannot be changed. Therefore, if a parent simply decides that they are no longer happy with the Consent Orders that they entered into, it is unlikely that a Court would change the Orders as there has not been a significant change.
Parenting Plans are flexible and easily changed, so they may be useful where the child is an infant and their needs are rapidly changing. However, they do not provide you with the protection of Consent Orders as they are not binding.
We often say that the two people best able to make arrangements for their children are the parents, as they know their children better than others. Therefore, you should only commence Court proceedings when you are unable to reach an agreement with the other parent.