When it comes to child custody matters, nothing causes more distress to fathers than not knowing whether they have any rights to see their child. We are routinely asked by concerned fathers whether they have any rights at all!
Often, these fathers have been misinformed or misled by their ex-partners, friends, or work colleagues.
The purpose of this article is to set the record straight and to give fathers who are separating a clear understanding of what their rights are when it comes to their children.
Father’s Rights to make decisions regarding their child
Under the Family Law Act, parents (i.e., fathers and mothers) have a positive and practical responsibility to take care of the financial, educational, medical, and psychological needs of their children.
This is known as parental responsibility. All parents have parental responsibility.
When parents separate, however, this parental responsibility can be exercised jointly as parents or solely is replaced with what is known as equal and shared parental responsibility.
This means that, when a couple separates, they are no longer able to make unilateral decisions about major issues (such as education, medical, travel) without the consent of the other parent. To make this effective, the law imposes an obligation on separated parents to come together and jointly discuss, canvass, and address major issues in a child-focused way. The objective is to have parents come to a joint decision regarding what is best for their child.
Of course, this is easier said than done. Understandably when parents separate, they often have very different parenting styles, objectives, and desires for their children. However, fathers have a right to be involved in the major decision-making process for their children.
There are times, when a situation arises, where parents are at such odds with each other or due to long term high conflict and poor communication, the Court will allocate sole parental responsibility to one parent. Sole parental responsibility allows one parent to make decisions regarding the long-term welfare of children.
We represented a father of a 10-year-old girl. He had separated from his ex-partner after 15 years of marriage. His ex-partner decided without any consultation with him, to enrol the child in a school that was an hour away from where our client lived.
In this case, we advised our client to contact the school and inform them of his objection and we filed an application at court and successfully obtained an order for our client to have equal shared parental responsibility. Moving forward, this ensured our client was involved in all decisions regarding his daughter’s education and any other major issues.
Father’s Right to see their child
The family law legislation makes it very clear that neither a father nor a mother has any rights to live with, spend time with or communicate with their child.
It is important to know that the right to spend time with, to communicate with, and to live with belongs with your child.
This may sound rather odd because so many of us have been raised and experienced our parents not only having a duty to care for us and raise us but also seemingly having rights over us.
However, in the context of separation or divorce, fathers and mothers do not have a right to see their child and as already mentioned that right belongs to the child.
Naturally, of course, children will want to see both their parents regardless of whether their parents remain married or separated.
In determining whether it is in the best interest of children to spend time with, live with or communicate with either parent or grandparent or any extended family members, we must always look at not only the right of a child to have close and connected relationships with their parents but also and more importantly the right to be safe, protected, and nurtured when they are living with, spending time with or communicating with either parent.
The law provides for a whole host of factors that must be considered before determining the parenting arrangements of children.
These factors include the existing relationship that a child has with their father or mother and if the child is old enough, what, if any are their wishes in spending time with or living with or communicating with their parents.
Why children need their fathers in their lives!
You do not need to be a social scientist or an expert in relationships to know and appreciate that children need not only their mothers in their lives but importantly their fathers too. In fact, we know that children who have happy and healthy relationships with their father’s experience:
- Higher levels of cognitive and social excellence
- Positive emotional regulation
- Positive self-esteem
- Positive interaction with siblings and peers
- Higher achievement at school
In contrast, children who grow up with absent fathers or having no relationship with their fathers, often experience a sense of loss and yearning. These children will seek out father -role models in their adult relationship and may experience a deep sense of lack of identity, which impacts their future happiness.
Fathers have a right to see their child do well in life, to thrive and to be involved in decisions that affect their long-term welfare and upbringing. If you are a father going through a separation, then the following 3 tips are designed to assist you!
Tip No. 1
Trust that the relationship you have built with your children over the years will not be forgotten because of the current separation or divorce. For fathers who have very young babies, this is understandably difficult, as they have not had time to bond or develop a relationship with the child. But that is no reason to panic. It is important to remember that the relationship will form when the child is developmentally ready- just be there, available and ready to enhance the relationship.
Tip No. 2
When you do spend time with the children make it about them, don’t involve the children in the conflict between you and their mother. Children can’t cope with this and they should not have to. Children should be safe, secure and have fun and be taken care of whilst with you.
Tip No. 3
Be the best role model to your children that you can be. Don’t underestimate how important your influence and presence is in your children’s lives. To become better and grow from your divorce or break-up, consider taking a divorce course to help you heal and find new ways of communicating with your ex-partner.
Navigating separation and divorce, especially when children are involved is emotional and fraught with legal complexities. All fathers have rights when it comes to providing quality and supportive care for their children.
If you need assistance and guidance, contact us today.
Pamela Cominos is the Principal of Cominos Family Lawyers. She is passionate about protecting children from conflict and is a strong advocate for children to have a meaningful relationship with their parents.
The information provided here is only for general information, it is not intended as legal advice.
If you require legal advice, please call us on 02 8999 1800.