Parenting and the Courts
How does a judge decide what to order when it comes to parenting?
The judge will consider the best interests of the children when making an order.
What are the best interests of the children?
When guardians and judges make decisions about children and parenting, the law says that the only thing they should consider is the children’s best interests. This means that the parenting plan, agreement or court order must protect the child’s physical, psychological, and emotional safety, and must consider the children’s needs and circumstances.
The factors that a judge will consider include:
- the love, affection and emotional ties between the children and the guardians, other family members and other people who have been involved in raising the children;
- the stability of each guardian’s home and the length of time the children have lived there;
- who has cared for the children as they have grown;
- the children’s cultural, religious and spiritual upbringing and heritage;
- the children’s views and preferences, where it is appropriate;
- the plans that are proposed by the guardians for the care and raising of the children;
- if there has been any family violence, and the impact that the family violence has had on the children;
- the abilities and willingness of each guardian to provide for the children’s needs and to communicate and cooperate with the other guardian; and
- how willing each guardian is to exercise the responsibilities of guardianship.
The applicant will give evidence verbally or in writing. Whenever an applicant is giving evidence, the applicant must swear that they are telling the truth. If they lie or mislead the judge, then they could be found to have committed perjury. There are serious consequences for lying in court.
What’s an example of the best interests of the children test?
In order to make a decision about parenting, the judge will need to have access to evidence about those factors. Let’s say that the applicant is applying for a parenting order. The applicant wants to have the children the majority of the time, and have the ability to make most major decisions for the children. The applicant needs to provide evidence that the suggested parenting arrangement is in the best interests of the children. This means the applicant would want to have evidence about:
This means that the applicant would want to have evidence about:
- his or her relationship with the children;
- the relationship of the other guardian to the children;
- specific details about the relationship between the two guardians (when the relationship began and ended, if they were married or living together, etc.);
- where the children have been living and with whom (Are there other children living in the home? Is there a new relationship?);
- details of the current parenting arrangement (How often are the children with her? How often do the children see the other guardian? Do the children spend more time with one guardian over the other? What activities do they do together? How long has this arrangement has been in place?);
- his or her role in caring for the children (Has the applicant always been the primary caregiver? Were those responsibilities shared equally between the guardians?) and the role of the other guardian;
- any reason why the other guardian would not be as good a choice to be the primary guardian for the children (any history of violence, abuse of drugs or alcohol, or neglect); and
- Plans that he or she has for the children (What is going to be done for childcare? Is there living space for all of the children? Are there plans for the children’s education? And any other plans).
The other guardian will have a chance to bring their own evidence to the judge. The respondent will also present evidence about what is in the best interests of the children. A judge can order guardians to hire a parenting expert for assessments if the judge thinks it is necessary.
The judge will consider the child’s best interests before making an order.
Can the children have a say about what goes into the parenting agreement and Order?
You can incorporate the views of the children into your agreement. If you are involved with the courts, the judge may consider the views of the children, depending on their age and maturity. Teenagers are more likely to have a say than young children. Even when the judge hears from a child, this doesn’t mean the child’s opinion will determine the issue. The judge will make the ultimate decision based on their opinion about what is in the child’s best interests.
The other guardian ended our relationship. Can they still apply for a parenting order?
Yes, the other guardian can apply for a parenting order. It does not matter whose fault it was that the relationship ended. The judge will not consider the behaviour of the guardian, unless that behaviour relates to their ability to act as a parent. For example, if one guardian has an affair, that does not mean they are a bad guardian.
Where will the children live while we wait to go to court?
If you and the other guardian cannot come to an agreement, then a judge can make an interim parenting order. This is a temporary parenting order, and will only apply until there is a final order.