Protecting Your Child During A Divorce

There are many reasons why people may choose to get a divorce, but when children are involved, the complexity of the situation increases manifold. As an adult, it can be challenging to reconcile the breakdown of your relationship with potentially still having to share parental responsibility with your former partner. 

It is important to remember that children are innocent parties in the relationship yet are the ones most likely to be affected by a divorce. As such, it is crucial to put their needs first throughout the proceedings and protect their wellbeing by making sure that the transition affects them as minimally as possible.

In situations where family or domestic violence has been involved, protecting your child becomes even more important as a divorce can greatly heighten emotion and intensify already aggravated behaviour. If this happens, child protection lawyers may have to help you advocate for arrangements that prioritise the safety and best interests of the children.

Divorce and Family Violence

In general, the divorce process takes time. You must have been separated from your spouse for at least 12 months before you can apply for a divorce and must demonstrate that there is no chance of reconciliation. If you have been married for less than two years, you will need to show that a reconciliation attempt has been made. This remains true even if you have experienced family violence (although the proof of attempt at reconciliation may be waived).

If your partner has exhibited abusive behaviour, child protection lawyers can assist you with child protection applications and orders at the Children’s Court to ensure your child is protected. It does not matter if the child was not verbally or physically harmed – simply exposing children to domestic violence is considered child abuse. In serious cases, you can apply for a Family Violence Intervention Order to minimise the risk of immediate danger.

An Intervention Order can stop an offender from committing family violence, damaging property, communicating with or contacting the victim, and other actions that may threaten the victim’s person. The court can also include children as an affected family member on the Intervention Order. However, the presence of such an order does not accelerate the actual divorce process. 

Divorce and Parenting Arrangements

Another important aspect of protecting children in the midst of divorce is by making good parenting arrangements. Parenting arrangements refer to how parents will carry out their responsibilities towards their children. While getting a divorce and negotiating parenting arrangements are two separate processes, divorce applicant(s) may need to provide a summary of the proposed arrangements during the application. 

Ideally, divorcing parties should be able to negotiate parenting arrangements that they are both happy with and jointly submit them. Otherwise, they must first undergo Family Dispute Resolution, then make an application for a Parenting Order to the courts if that fails. The absence of an agreed-upon parenting arrangement may not always prevent a divorce from proceeding, but adjournment is possible – though rare – if the court is not satisfied. 

Parenting arrangements are multifaceted and can take many forms, but they should always have one thing in common: putting the children’s needs and interests first. Key points of discussion may include:

Parental Responsibility

Parental responsibility involves making significant decisions about the child's life, including education, healthcare, and religious upbringing. 

• Sole Parental Responsibility: One parent makes all critical decisions for their children until they turn 18. This can only happen by court order and is more likely to happen if the other parent has been proved to cause harm to the child.
• Shared Parental Responsibility: Both parents collaborate on essential matters. This can work well when parents have similar values and communicate effectively.

Living Arrangements

Living arrangements refer to where the child will live. 

• Sole Living Arrangements: The child lives primarily with one parent, which is typically awarded when one parent provides a more stable environment.
• Shared Living Arrangements: The child splits time between both parents. This can work if parents can share responsibilities equally. Consider the child's comfort and the logistics of splitting time, such as proximity to school and activities.

Sole Parenting

Sole parenting means one parent has both living arrangements and parental responsibility. The other parent may have visitation rights but no decision-making authority and is often considered when one parent is deemed unfit due to issues like substance abuse or neglect. 

Shared Parenting

Shared parenting involves both parents sharing living arrangements and/or parental responsibility for equal participation in the child's upbringing. This is often preferred to ensure a close relationship with both parents. It may require more discussion on schedules and agreements on decision-making to avoid conflicts and ensure consistency for the child.

Family Violence and Parenting Arrangements

If family violence has been a factor in the relationship, the prerequisite of undergoing Family Dispute Resolution before applying for a Parenting Order in court can be waived. However, there are ways to make Family Dispute Resolution safer as well if you still wish to pursue this route.

The presence of family violence will significantly affect the court’s approach to a Parenting Order as it will always seek to protect the best interests of the child. If one party has been proven to commit family violence in any form, the court may choose to restrict the child’s interaction with the parent in question or do so under tight supervision to minimise their exposure to harm. 

Every case is different. However, in all situations, your child’s wellbeing must take top priority. If you feel that your child is at immediate risk of harm or otherwise in an unsafe environment, contact a child protection lawyer to begin the next steps as soon as possible. They will be able to assess the situation and guide you through what must be done to keep your child safe.

Parenting Order Applications In Court

If Family Dispute Resolution fails and a Parenting Order application is made to the courts, it is in your best interests to equip yourself with an understanding of state laws and judicial procedures. Parenting laws vary by state, so it is essential to know the specific regulations in your area and get local legal advice.

Keep detailed records of all interactions with your ex-partner, including emails, text messages, and notes from conversations. Comprehensive records can provide evidence of your involvement and commitment to your child's well-being, clarify misunderstandings, and demonstrate your efforts to cooperate and communicate effectively.

In some cases, the court may order a parenting evaluation. A professional will evaluate each parent's ability to care for the child and make recommendations to the court. These thorough assessments can significantly impact the court’s final decision and may include home visits, interviews with parents and children, and consultations with other professionals involved in the child's life, such as teachers or therapists.

Parenting Orders are court-ordered arrangements and are legally binding. They can be enforced if either parent fails to comply. It is also important to note that you can apply for a Parenting Order to be changed or suspended if it is inconsistent with a Family Violence Intervention Order.

Coping Practices For Children

Besides making legal decisions that prioritise your child’s interests and safeguard their person, you can also protect their mental well-being during the turbulence of divorce by creating a safe environment for them. Maintain established routines, engage in open communication, and – if necessary – enlist professional help. 

Listen Actively

Pay attention to your child's feelings and concerns. Open and honest communication helps your child feel heard and supported. Encourage them to share their thoughts and feelings. Be patient and empathetic as they navigate changes in their family dynamic. Acknowledge and validate their emotions to strengthen your relationship and ease their emotional burden.

Maintain Stability

Children thrive on routine and stability because it provides a sense of security and normalcy, which is crucial during the uncertainty of a divorce. Maintain a consistent schedule with regular meals, bedtimes, and extracurricular activities. Consistent routines help children feel secure and reduce anxiety during significant changes.

Encourage a Positive Relationship with Both Parents

Where possible, encourage your child to maintain a healthy relationship with the other parent. Avoid speaking negatively about your ex-partner in front of your child. Positive reinforcement helps your child feel loved and supported by both parents, reducing feelings of loyalty conflict. Supporting this relationship prioritises their emotional well-being over personal grievances. 

Seek Professional Support

Your child may have issues with or stemming from the divorce that are too complex for you to handle alone. If this happens, consider seeking help from professionals, such as child psychologists, counsellors and therapists. They can teach your child coping strategies, help them develop resilience and offer a safe space for them to express their feelings. 

Safeguarding Your Child’s Future Comes First

Divorce is never easy, but it can be particularly hard on children, who are the most vulnerable parties in any relationship. They depend on you, their parent, to protect them and their future. Careful consideration, clear communication, and an unwavering focus on your child's well-being are necessary to minimise the impact of divorce on them and help them to move forward. 

You and your partner may not wish to remain legally bound any longer, but you will always be connected through your children. Keeping their needs at the forefront of every decision throughout the divorce process can foster healthier relationships and more positive outcomes for everyone involved once the transition to a new stage of life is complete.