How to decide custody and access

There are a number of ways to decide how the care of the children will work between two parents. Arrangements may be:

  • arranged informally between the parents,
  • worked out in mediation, and then made a rule of court, or
  • the arrangements can be decided by the Court.

If the couple was married, custody and access arrangements for the children will form part of a separation agreement, judicial separation, or divorce.

If the parents were not married, they may be able to agree custody and access arrangements between them. If agreement is not possible, the father can apply to the District Court for access and/or custody orders.

Benefits of Access and Custody Arrangements by Agreement

In general, if arrangements for custody and access can be made by agreement, or in mediation, it is a calmer and less stressful process than going to court.Mediation can be particularly helpful in coming to an agreement on these issues.

Deciding by agreement, whether between the parents or using a mediator, allows the parents to decidewhat is best for their family in its new form. The agreement can then be made an order of the court and becomes legally binding.

The alternative is to hand these decisions over to the Court which has no knowledge of your family but must make decisions about it if you cannot.

Legally Binding Arrangements

Arrangements for custody and access for separating and divorcing couples become legally binding when either the deed of separation (separation) or decree absolute (divorce) is formalised.

Where the parents were not married, the access and custody orders provide certainty about the arrangements and are binding, that is, the parents must comply with them.

If Court Orders are in place, but are not complied with by the parties, they can be brought back to the court for being in breach of the order. Orders can be varied by the court if circumstances change.