CHILD CUSTODY CHILDREN’S RIGHTS AND PARENTS’ RIGHTS

The Family Law Act in Australia has things to say about the rights of children in separating families. It has nothing to say about the rights of parents in separating families, other than procedural rights to be heard within the system. It is appropriate  that the best interests of children are the overarching priority of the Act, and that the rights of children to a meaningful relationship with each parent is where the discussion about rights is centered.

 

Our law does not give parents rights about the time their children will spend with them after separation- precisely because children are not property to be the subject of a tussle between parents exercising their own rights. As soon as parents are given rights to custody of the children, one set of rights has to take precedence over the other. It goes without saying that the rights of the adults, who have the power authority and money would most likely win out over the rights of minor children. The law and child-focused practitioners are there to protect the children’s best interests.

 

Legislatures generally lag behind public opinion. So in that respect, the Family Law Act is  a reversal of the norm when it talks about the rights of children. So how and when will it happen that parents stop talking about  their rights in relation to their children ?  Countless parents have  said to me that they want will insist on their rights to the children.  It usually takes only a short discussion to understand that these statements about rights and positions come from a place of fear, about the outcome of negotiations or Court Orders.  Sometimes it is from the less attractive place of insistence  on control or on winning,  but in the end, that is probably also an expression of fear.

 

Fortunately, the Australian family law system  elevates the role of child psychologists , family consultants and independent children’s lawyer’s.  It is the Family Law Act’s greatest recognition and inclusion of the value of the social sciences in family separation.  It is time to listen to what parents really mean when they talk about their rights to the children, and to re-frame the language to the children’s interests and rights . For those parents who really do believe that they have rights over the children, it is they who need to catch up with the law rather than the other way round.

 

A central right which children have, in the law and as people, is to be kept out of the middle of their parent’s conflict.  While this is an aspiration of the Family Law Act,  and there is a requirement that parents mediate before issuing court proceedings about their children, the Act does not address the  underlying causes of parental conflict at all.  It is unfortunate that  the requirement of the Act is limited  to mediation  before parents can issue proceedings  about  where their children are to live and the time they are to spend with each parent.  We can do better and could require parents, separately or together,  to work on their relational conflict  before  exercising the privilege of  issuing  an application  in the court system,  which is likely to be more damaging for the children and an inefficient use of  public money.

 

Ensuring the rights of children in separation is an investment in the well being of our children, the parents of the future. That’s why it is appropriate in separation that kids have the rights and not the parents.