Negotiating Parenting Plans: Where Do the Children Live After a Family Breakup?

Separation and divorce are a reality for many Australian couples. When children are involved, the impact on the family can make the aftermath of a breakup even more overwhelming. Parents will often be anxious about how children’s care arrangements will play out immediately after separation, and in the long term.

Negotiating parenting plans that outline where the children will live and how parents will share responsibilities is a vital step that parents can take to help provide clarity and minimise additional stress and anxiety.

What is a Parenting Plan?

A parenting plan is a written agreement between separated parents that outlines how they will raise their children moving forward. It’s a roadmap for co-parenting, detailing where the children will live, who makes decisions about their upbringing, how parents will communicate about important issues regarding their children, and how they will resolve disputes. While parenting plans are not legally required or binding, they can help provide stability and structure for children after separation. Parenting plans can also be made into legally binding consent orders by application to the court.

Key Components to Address when Negotiating Parenting Plans

• Living arrangements: When negotiating parenting plans, deciding on living arrangements is often the most contentious aspect. Options include:
  • Primary residence: One parent becomes the primary caregiver, and the children live with them most of the time. The other parent has regular contact, such as weekend visits, holidays, and special events.
  • Shared care: Children spend significant time with both parents, often on a near-equal basis. This could involve week-on-week-off arrangements or more complex schedules.
  • Birdnesting: Less common, this involves the children staying in the family home, and the parents taking turns moving in and out.
• Decision-making: The plan outlines who is responsible for major decisions regarding the children’s lives, such as education, healthcare, and religious upbringing. This can be shared equally or allocated to specific parents for different areas.
• Communication and dispute resolution: A good plan includes strategies for effective communication between parents and mechanisms for resolving disagreements, such as mediation or counselling.

What Does the Law Say?

In most cases, it is best if parents can agree on the post-separation arrangements for their children. If an agreement cannot be reached, they may need to ask a court to determine these issues.

In family law cases, courts decide on the allocation of parental responsibility on a case-by-case basis with the paramount focus being the child’s best interests. In determining what orders to make, the Family Law Act 1975 provides that the court consider some core factors which include:

• The arrangements necessary to promote the safety of the child and all individuals responsible for the child’s care.
• Any views expressed by the child.
• The child’s needs, encompassing developmental, psychological, emotional, and cultural aspects.
• The capacity of each person with parental responsibility, whether current or proposed, to meet the child’s developmental, psychological, emotional, and cultural needs.
• The benefits to the child in having a meaningful relationship with their parents, and people significant to the child.

A court may consider any other factors that it deems relevant to the specific circumstances of the child. Additionally, the court must consider the child’s connection to ‘family, community, culture, country, and language’ when determining what is in the best interests of Aboriginal or Torres Strait Islander children.

*These recently introduced provisions remove the presumption of ‘shared parental responsibility’ which no longer operates. They apply to children in Australia whether or not their parents are, or were married, but not currently to children of unmarried parents in Western Australia. It is, however, anticipated that the Western Australian government will amend legislation so the provisions will apply to children of de facto parents.

Considerations when Negotiating Parenting Plans

While there is no one-size-fits-all answer to negotiating parenting plans, the children’s best interests, as determined in the Family Law Act, should be paramount. Making a workable parenting plan requires a cooperative approach between parents with the children’s welfare at the forefront of negotiations. A mediator or family dispute resolution practitioner can help parents agree on implementing effective plans that work for everyone. It is important to remember that parenting plans are not set in stone and can evolve as children grow and circumstances change.

When negotiating parenting plans, several practical considerations for children’s arrangements should be addressed, including:

• Child’s age and development: Babies and toddlers will likely need more stability and consistency, while older children may benefit from more flexibility and input into the arrangements.
• Each parent’s capacity to provide care: This includes factors like emotional stability, financial resources, and availability to meet the child’s needs.
• Existing routines and attachments: Maintaining continuity in the child’s life, such as schooling, extracurricular activities, and relationships with friends and extended family, is important.
• Parents’ work commitments and location: Practical considerations like work schedules and the distance between parents’ homes play a role.
• Child’s wishes: When negotiating parenting plans, the maturity and preferences of the child may be taken into account.
• Family violence: In cases involving family violence or abuse, negotiating parenting plans must prioritise the safety and well-being of the child and protective parent.

Making Parenting Plans Work

Successfully negotiating parenting plans is just the first step toward long-term co-parenting success. Successful co-parenting requires ongoing effort and commitment from both parents. In addition to always prioritising the child’s best interests, other practical tips can help.

• Communicate effectively: Maintain open and respectful communication with the other parent, even if doing so is challenging.
• Be flexible and willing to compromise: Life throws curveballs – parents’ and children’s schedules can change at the last minute. Being willing to accommodate such changes to address unforeseen events is crucial.
• Communicate with your children: Try to remain calm and positive when dealing with challenges and changes. How you explain unforeseen events to your children will depend on their age, level of maturity and the circumstances.
• Seek professional support:Mediators and family therapists are invaluable resources when negotiating parenting plans and navigating high-conflict disputes.
• Review and adjust the plan: Anticipate that parenting plans may need to change and be prepared to renegotiate as your children grow and circumstances change. You may need to review and update the parenting plan to ensure it remains relevant and in the child’s best interests.

Taking the Next Step in Negotiating Parenting Plans

Parenting is challenging at the best of times, let alone following a separation. Still, it is important to remember that even after separation, both parents continue to play an important role in their child’s life. While negotiating parenting plans and working through the practicalities of a co-parenting arrangement can be difficult, it is worth persisting to reach an agreement that is in the best interests of your children.

This is general information only and does not constitute legal advice. You should obtain professional advice relevant to your circumstances.

If you or someone you know wants more information or needs help or advice, please call +61 2 9283 3344 or email [email protected].