Top 5 Mistakes to Avoid in Child Custody Matters

Child custody disputes are likely to be among the most challenging and stressful circumstances those impacted by them are likely to ever go through.

Most (reasonable) parents love their children. And most parents love them dearly.

The thought of losing access to a child or being severely impacted in access is a dreadful thought for most. Add to that the feeling of bitterness towards one spouse and it can make for a combustible situation.

Notwithstanding the obvious emotions at play, child custody matters are not the place to settle scores. Our recent advice and posts on social media (since our firm’s digital relaunch) has generated a lot of interest, with a flood of questions about our content.

One that has been repeatedly requested is “dos and don’ts” in the context of child custody matters.

In this list, we briefly go through the top five things we’d advise people avoid in the context of a child custody matter in the interest of the child, or their interests, or both.

Before beginning, some context and acknowledgements: Family court custody disputes can turn the most caring and loving parents into warriors, battling each other vociferously. The reality of course is that children are not “assets” to be won and such an approach is counterproductive both in the legal system and in terms of its impact on the child.

By approaching a child custody dispute in a way that treats children as assets and in a way that fails to place your child’s best interests first, you may cause significant damage to your child’s welfare and the outcome of your child custody case.

Here are the top 5 mistakes to avoid.

1. Not putting your child first in parenting decisions

It is not uncommon for parents to put their own self-interest ahead of their children’s, particularly where emotions are flying high and there is an element of vindictiveness creeping into the case.

This often takes place where parents want the court to make a certain order when in reality their agenda or desire for this is based on some sort of self-interest.

Examples can include positioning yourself as wanting shared custody when in reality you desire to pay less child support, or wanting the child’s school to change on the grounds that it is “better” when it is really simply just closer to you.

The courts’ ultimate consideration is always around what is in the best interests of the child.

If you cannot justify to the court why you are seeking a certain order, then you may need to reassess whether you should be seeking that order in the first place. The court will only make the order you are seeking if it benefits your child and if after having considered all the alternatives, that order is in your child’s best interests.

2. Breaching court orders

Breaching a court order is an extremely serious matter.

If you are found guilty of contravening a court order without a reasonable excuse, penalties can include makeup time for the other parent and you may be hit with a legal costs order as well.

For more serious contraventions you may be ordered community service, probation or (ultimately) even prison.

Where a parent continuously contravenes a court orders and the court has formed a view that that parent is not able to sustain the child’s relationship with the other parent, the court may reconsider whether the current parenting orders are in the child’s best interests, and the court could even order a change of residence.

3. Talking poorly about the other parent to a child

Talking poorly about the other parent to the child is among the most common things we see in family court battles.

Put simply, there are no positive outcomes from trash-talking about the other parent to your child. 

Firstly, saying negative things to your child about the other parent has the potential to have a negative impact on your child’s wellbeing. This is due to the impact on self-esteem, mental health and future relationships.

But further and pertinently to the object of this piece, the court will perceive you in a negative light if you are doing so. It is extremely hard to “get away with” this sort of behaviour as the child will eventually tell the other parent at some point or they will “pick it up”.

The court ultimately reads both parents’ affidavits and forms a view based on interactions with the other parent.

If a certain parent’s affidavit is full of examples of talking ‘trash’ about the other, this will cause a presiding Judge to form a negative view about you.

If you are talking about the other parent in such a way which causes the Court to form the view that you are unable to encourage the child’s relationship with the other parent, this is likely to have a significantly negative impact on the outcome of your child custody dispute and in some circumstances may result in a change in residence.

4. Withholding a child from the other parent

Not allowing the other parent to spend time with a child is definitely one of the worst mistakes that can be made in any parenting dispute.

The exception to this is where a child is at risk of harm in the care of the other parent, in which case withholding your child from the other parent would be deemed to be “in your child’s best interests”.

But absent that scenario, you should facilitate your child in having a relationship with their other parent.

If you withhold your child from spending time with the other parent, and do not have a very good reason for doing so, the court will form a very negative view of your conduct.

In some cases where the court cannot be satisfied of your ability to co-parent, the court may conclude that a change of residence is in your child’s best interests.

5. Attempting to doctor family report interviews

The Family report is an important piece of evidence in a parenting cases.

 Judges generally put significant weight on the recommendations of the Family Report, which can thus make or break your parenting application.

Telling a child what to say during the family report interview is a big mistake. Ironically, Family Report workers and writers are very experienced at what they do and can generally tell when a child has been coached because of the way that the child reports information to them.

If you coach your child and the Family Report Writer says so in their report, they are likely to have serious concerns about your ability to encourage the child’s relationship with the other parent and their recommendations will be coloured by this assessment in court.