Top 10 Mistakes in Child Custody Matters

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Chances are that if you are reading this, you’re experiencing some difficulty concerning the child custody arrangements for your children.

Whilst shared parenting is a common occurrence in this day and age, sorting out arrangements for your children and parental conflict take a huge toll on both parents and kids alike.  So many parents are not child-focused and let stress and emotions guide their behaviour and actions - which can have a disastrous effect on the outcome of your case.  It is vital to be prepared with the likely obstacles you will face, not only legally, but emotionally and financially.

Don’t Make These Top 10 Mistakes in Child Custody Matters:

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  1. Talking Badly About the Other Parent to the Child

    This is unfortunately, yet unsurprisingly, the most common mistake we see parents make and it is displayed by both mothers and fathers in many child custody cases.

    For many parents, the reality is that their child is the only person with any knowledge of the family breakdown or the interactions between the parents, which in turn leads to that child acting as the listening post.

    What many parents fail to realise is that, in the midst of their heightened emotions, the child involved suffers in many different ways.

    A child privy to the negative views of one parent toward the other can often feel pressured to take sides.

    It is important to remember that denigration of one parent by the other does not only present itself in the form of the parent speaking directly to the child, but also in other instances such as overheard conversations by a child.

    Even if unintentional, talking negatively about your spouse to a friend when you think your child is in another room or cannot hear you, when in fact they may be listening, can undermine the relationship that your child has with the other parent. Remember, children are often curious and will listen in on adult conversations.

    As children grow older, even into adulthood, they tend to look at their parent’s behavior and may judge you if they perceive you have undermined their relationship with the other parent.

    Apart from the impact on the children, denigrating the other parent will also cause the Court to look unfavorably upon you. Judges are acutely aware of the impact it has on children. Such behaviour can see parenting matters change drastically, simply due to the manner in which one parent refers to the other.

    The most effective way to combat this mistake is to ensure that you have proper channels of stress relief. Where you feel that speaking to someone is necessary in order to air your grievances, a psychologist/psychiatrist or GP can offer an independent listening ear and advice on how to cope.


  2. Trying to Make Your Child Feel Sorry for You, Even if Unintentionally

    This issue is referred to by the family law courts as attempting to align a child’s views to those of a parent, or parental alienation. This is a particularly harmful act as it has the same consequences upon your child as discussed in item 1 above, but also exhibits to the Court you are not child-focused and suggests an issue of your inability to co-parent and act in the child’s best interests.

    It is not helpful for your own relationship with the child as it effectively reverses the roles between the parent and the child, with your child more-so taking on the role as the parent. Children require your guidance, not the other way around.

    Such behaviour can be malicious, with deliberate intention to hurt the other parent, such as telling the child the other parent doesn’t pay for anything and to ask them for money, or telling the child that the other parent is a bad person for whatever reason.

    However, such behaviour does not only involve direct acts of seeking sympathy, it can also be instances of sub-conscious behaviour such as:
    • Crying in front of the child;
    • Telling the child that the other parent is taking you to Court
    • Expressing distress over the family breakdown such as providing details about not being given any money or being ‘kicked out’ of the family home.

    The impact your behaviour has on your child can be significant and, in most cases, cannot be undone, so you must always be mindful of your actions and behaviour. 


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  3. Not Trying to Communicate With the Other Parent

    This is a major issue for two reasons, the most important of which is that your children need to see their parents communicating for the good of their well-being. Failure to communicate with the other parent can be extremely detrimental to many aspects of your child’s life, including but not limited to medical care, education and social development. Children miss out on things when their parents can’t communicate. They also learn to play one parent off against the other in trying to get what they want.

    The second reason is that the Court may take a negative view against you if you fail to try to communicate with the other parent. In children matters, the Court’s primary concern is the best interests of the child, on which all of its decisions will be based.

    Thus, failure to communicate will translate to the Court that you are not willing to promote the relationship between the child and the other parent, being an essential part of parental bonding and social development.

    You don’t need to be best friends, but you chose to have a child together, so the Court expects that you can behave in a child focused manner and exchange important information for the sake of your child.

    If you find it difficult to correspond with the other parent, it’s wise to agree on one medium of communication that will minimise conflict. Many separated parents prefer to email, text, or use a communication platform such as ‘Our Family Wizard’, finding that written communication elicits less emotion and keeps conversations more child-focused and appropriate.

    If the Court considers that you are genuinely not willing to promote a relationship between the child and the other parent without good reason, there is a risk that the Court will say a shared care relationship can’t work and the other parent may become the primary carer - and in some cases, even be given sole responsibility for major long-term decisions.

    For more information on possible parenting arrangements, please see our blog post Parenting Arrangements - Care Arrangements for Children up to School Age.


  4. Child Custody & Preventing Access to a Child

    child custody imageWhilst many parents believe they are doing the right thing by withholding the child from contact with the other parent, it is often the case that this is one of the worst things a parent could do.

    There are some cases where there is a need to protect a child from being physically or emotionally harmed. But if there is no risk of harm to the child, then the Court expects to see a parent who is open and keen to demonstrate that they are willing to co-parent and promote a relationship between the child and the other parent.

    If you withhold a child from the other parent without a good and justifiable reason, you could find yourself losing primary care of the children for your failure to show a willingness to encourage the children’s relationship with the other parent.

    Having said that, there are some circumstances where it is essential for a parent to withhold the child from access by the other parent. These are when serious situations arise in which the child is at risk of harm, be it emotional or physical, and in need of protection from the other parent.

    Some instances where this is deemed necessary can include:
    • The other parent is violent towards the child to excess (and by this we do not mean smacking)
    • The other parent is taking drugs in the presence of the child
    • The other parent is the victim of domestic violence and the child may be exposed to this behaviour
    • There is a risk of the child being exposed or subjected to sexual abuse
    • The other parent may potentially expose the child to harm
    • The other parent has done or said something to make you believe that they will not return the child at the end of their visit.

    If your concern for the child’s well-being is so serious to cause you to prevent access to the other parent, we strongly recommend attempting to maintain telephone contact with the child and the other parent or arranging supervised visits (if appropriate) until orders are made.

    This will show the Court that you are serious about attempting to maintain a relationship between the child and the other parent, whilst maintaining the safety and well-being of the child.

    Remember, withholding access to a child can have serious ramifications for you in Court proceedings so you may wish to seek legal advice as to possible alternate measures and if your actions are reasonable before denying access.

    If your child is being withheld from you, please see this blog post for more information 

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  5. Lying About Drug Use or Alcohol

    Drug and alcohol abuse is not uncommon in family law. What is also common is the frequency of parents that try to hide or deny the use of drugs or alcohol.

    Many parents with a history of drug and alcohol consumption understandably believe that their use of such substances will impede upon their chances of gaining parental responsibility.

    This can be the case, however, it is important to recognise that the family law courts are not as concerned about your drug or alcohol use as much as they are concerned about how your said use impacts upon your children and your ability to parent.

    Taking steps to minimise substance abuse, such as counselling or rehabilitation, and making an effort to stay away from drugs and alcohol during visits with the child can show the Court that you have the ability to maintain self-control. This will improve your chances of having contact with your children.

    Remember the Court is more concerned with your future ability to care for your children appropriately, rather than your past.
  6. Splitting Up the Children

    It is becoming more and more common to see blended families in today’s world. The Court will take into account the relationships between all types of siblings, including half-siblings and step-siblings, not just biological siblings.

    In the instance that parents with blended families separate, it is important to give consideration to the impact on the children if they are to be split up.

    People tend to focus on only the biological children of the parents and fail to accommodate for the other children involved.

    Seeking to separate the children may suggest to the Court that the parent is not child-focused. The Court does not usually like to separate children unless they have no other option.

    It may be wise not to ask the Court that children be separated, especially where twins are involved, and consider alternative measures before this is suggested.

    However, on occasion, the Court may reach a decision that the best option to accommodate all of the children’s best interests and well-being is for them to be separated.

    We recommend you seek legal advice in this regard as it applies to your particular circumstances. You may need to consider child custody mediation to find a solution that works for all involved. 

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  7. Not Being Properly Prepared for Court Specialists/Experts or Coaching Children

    Although it is a common part of many family law matters, people tend to underestimate the importance of family reports and the interviews conducted with all parties including the children in this process.

    Many Judges rely heavily on the recommendations of the family report writer, giving great weight to the analysis of these experts and their independent opinion.

    Whilst decisions aren’t always made in line with family reports, it is usual practice that the recommendations of these experts form the basis of the decision ordered by the Court.

    Make no mistake - preparation for a family report interview does not involve telling the children what to say, how to act or what to report back. It is vital that you let your children speak for themselves as children will normally be quite honest or are at least bad liars when questioned during family report interviews. It will be obvious to the report writer when a parent has tried to coach the child for the interview.

    Children do not like to be made to choose one parent over the other and any manipulation by one parent in this manner will display unfavourably in the written report.

    Family report writers are called on to be impartial and provide recommendations based on the best interests of the child. The Court places a high level of trust in family report writers’ observations of the parents and interactions with the children.

    To prepare for a family report interview, you should practice refraining from saying anything negative about the other parent and thinking of positive things you can say about the other parent. This will help you to be more balanced and child-focused during the interview process so that you don’t bad mouth the other parent.

    Remember, from the moment you speak to the family report writer or their secretary on the phone to arrange interviews, through to arriving in the reception area, interacting with your children and speaking to the other parent, right up until when you leave the interviews - everything you say and do is being watched!

    For more information on this topic, please see our blog post Family Report - What to Expect.
  8. Allowing Children to Play Parents Off Against Each Other

    When parents fail to communicate, or are competing for the affection of their children, they tend to play one parent off against the other – which then causes parents to lose their ability to co-parent effectively.

    Rules and structure are vital to the growth of a child and the absence of same tends to encourage children to test the boundaries of both parents, often seeing an opportunity (such as to get an iPad, clothes or other presents) by making one – or both – parents feel guilty.

    Whilst children may test the boundaries from time to time, they need their parents to make decisions for them. If you cave into your child’s demands it can lead to bad parenting decisions and increasing parental conflict.

    A good way to avoid this happening is to ensure communication between parents relating to the separation is not in the presence of the child and that that negative emotion is not directly displayed in the presence of the child.

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  9. Involving Children in Adult Conflict/Legal Proceedings

    As far as Judges are concerned, family law proceedings are for the involvement of the parents only and children should not be involved in any aspect of the case. A courtroom is no place for a child of the proceedings and anyone under 18 years is not permitted in the family law courtrooms without the Judge’s permission.

    There are many reasons why your child should not be involved in the court proceedings, including showing your child court documents. It is considered extremely inappropriate because you are involving your child in adult issues that children should not be privy to. Your child may not be aware of various matters that may be alleged, such as a parent’s drug use, an affair or instances of poor parenting.

    Children often see their parents as heroes and information that may be exchanged through family law proceedings is not something your child needs to know. You may hinder a child’s view of the other parent, or even their view of you in some cases and undermine the relationship between the child and parent.

    If deemed necessary, the appropriate way to include a child’s wishes is through arranging a family report.
  10. Not Putting the Children’s Best Interests Ahead of Your Own Decision Making

    Understandably, people can often become completely consumed by their separation, but when parties are completely entrenched in conflict it often leads to them focusing on their own interests and the negative things about the other parent, over and above what is best for their children.

    A common example of this is living arrangements. For example, wanting to live somewhere that is close to work, wanting the children to live with you to minimise child support, or not agreeing to the other parent’s parenting proposal because you don’t want them to dictate when you see the children.

    We often see situations where parties’ own agendas are tried to be portrayed as if it is in the interests of the children. The Court sees this time and time again and can easily identify when parents aren’t being child-focused.

    Before you make a decision that concerns your child, it is best practice to ask yourself if what you are about to do is truly in the best interests of your child, or if you are, in fact, getting something out of it. If the answer is no, then it should be avoided as the Court will likely see it as you are putting your needs ahead of your child.

    The ultimate decision of the Court will always reflect the best interests of the children under child custody laws Australia. Whilst Judges will investigate the many factors involved in determining their decision, they are human, so they will still be influenced by their own opinions. This means it is incredibly important to act in a way that will not leave them questioning your judgement.

If you aren’t sure you’re doing the right thing, it’s important to get legal advice. Our family lawyers are always happy to have a chat with you – call us today.


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