Going to court

GOING TO COURT

It is now mandatory that you attempt to resolve your parenting issues through family dispute resolution before making an application for a parenting order in court. However, sometimes it is just not possible to resolve your parenting issues outside of court. What happens next?

When you go to court, the judge will make a decision based on what is in the best interests of your child. The focus is on the rights of the child NOT the rights of parents. 

The judge will make a decision about two questions: 

• parental responsibility – who gets to make decisions about the child.

• parenting time – who does the child live with and spend time with.

It is presumed that when parents separate, both of them will have ‘parental responsibility’ for their children. This means that most separated parents must make major decisions (eg, decisions about the child’s health, education, religion) in consultation with each other. Parental responsibility has nothing to do with how much time you spend with your children.

There is also no presumption of joint custody or ‘equal time’. However, if the judge decides that both parents have parental responsibility, he or she must consider that the child spends equal time with both parents. Sometimes, equal time is just not practical because the parents live too far away or a parent’s work schedule makes it impossible. In that case, the judge must consider that the child spend ‘substantial and significant’ time with each parent.

Often a judge will make what is referred to as an ‘interim order’ before making a final decision about your case. An interim order is a decision about where your children will live during the time that will pass before your case gets to trial. It is a temporary order and will be replaced by the final order made after the judge hears all the evidence at trial. An interim order is often the first thing that our lawyers will help you secure.