A legal guide to custody rights for unmarried & married mothers and fathers

Australian law regarding children and parents has undergone many changes in recent decades. 

By Adrian Curtis, Associate at Australian Family Lawyers, Canberra

The focus has increasingly shifted from ‘custody rights’ of parents towards children’s rights and the relationship a child has with their parents.

Keep reading to learn more about how the Court looks upon parental and custody rights as a mother or father in Australian law, including unmarried vs. married mothers and fathers.

Mothers’ rights vs. fathers’ rights

Child in meadow smelling a flower

There is a perception with many people that custody rights for mothers are given some priority in Australian law. However, this is not the case. The Family Law Act and the Courts do not provide either parent with any unique rights or advantages when going through parenting disputes.

In fact, the Court has moved away from discussions of custody rights and parental rights entirely. Instead, the Court focuses on the rights of children to have a meaningful relationship with both parents and the responsibilities of the parents. 

The Australian Court today recognises that either parent may take on the role of primary carer and that no matter who the primary carer might have been, a child is entitled to a meaningful relationship with both parents. In practice, this can be a gendered issue due to the birth mother having greater maternity leave entitlements or breastfeeding, for example. As a result, the Mother may often be the primary carer. 

We know from experience, and from some statistics published by the Australian Institute of Family Studies, that mothers are more likely to occupy primary carer roles and are more likely than fathers to have sole parental responsibility. For example, 45% of parenting orders made by a judge in contested parenting proceedings provide for the Mother to have sole parental responsibility by the mother, while 11% gave sole parental responsibility to the father.

What is important to note, is that regardless of what gender a parent is or what role they play, the best interests of the children are the paramount consideration. The Court will place these interests above the rights of either parent. 

Custody rights for unmarried mothers and fathers

When making Orders about parenting matters the Court will treat married and unmarried mothers or fathers the same. The focus of the Court is on the rights of children to have a relationship with their parents, regardless of whether their parents are married or not. 

The Family Law Act refers to parents and the rights of children, rather than to the custody rights of Mothers and Fathers or Husbands and Wives. This can mean that, even when the parties are not and have never been in a relationship, the Father can still seek Orders for time with their child. You can read more about fathers’ rights in this dedicated article.

Both parents have the right to seek Orders for time with their child, regardless of whether they are married or not. Similarly, both parents must be served with any Application brought to the Court for Orders about children. 

When seeking parenting arrangements, the parties are usually required to attend mediation first and attempt to resolve the matter without proceedings. Mediation can offer you the opportunity to put forward your concerns and proposals in a forum where you have more flexibility to create solutions that are tailored towards you. 

Even though parents can both seek to be involved in their child’s life, the Court will take into account several additional factors. Concerns about the children’s safety, the capacity of a person to parent and the time that someone has been involved with the child beforehand can all be key factors in the Court’s decision about what time a child spends with either parent

Best interests of the child

custody right for mothers unmarried with mother and song playing in kitchen

The paramount consideration for the Court is the best interests of the children. This is determined by referencing section 60CC of the Family Law Act. This section sets out the factors the Court should take into account when assessing what Orders are in a child’s best interests. 

The primary considerations for the Court are: 

  1. The benefit to the child of having a meaningful relationship with both of the child’s parents; and
  2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence. 

The Court gives greater weight to the requirement to protect children from harm. However, Orders may still be made that attempt to balance both considerations where any potential risks can be mitigated. If you hold concerns for the safety or wellbeing of your children, provide your lawyer with detailed information about the risks and concerns. Your lawyer can discuss possible options to ensure the safety of the children and manage any potential risks.

There are a number of additional considerations that will also inform the Courts decisions. These include matters such as: 

  • The age, maturity, and where appropriate, views of the child; 
  • The child’s relationship with each parent and any other important people in their lives; 
  • The likely impact on a change in the child’s circumstances; 
  • Cultural and lifestyle factors; and
  • The attitudes of each parent towards the care and maintenance of the child. 

These are only a few examples of the matters the Court may consider. You should speak with your lawyer in detail about your circumstances so that any matters which may be relevant are covered. 

Our team of dedicated family lawyers can help you through each step of disputes about parenting and child arrangements, from mediation through to Court proceedings.

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