The answer to the question “does the Court need to be involved in the care arrangements” or “Do we need Parenting Orders after we are separated or divorced” is simply…”it depends and not always”. If you and your partner have separated and your parenting relationship has remained intact or at the very least, amicable, there may be no need for you to involve the Court or lawyers. If you and your ex-partner are able to reach an agreement in relation to the parenting arrangements for your children, either on your own, with the assistance of lawyers or during a mediation, and do not require the agreement to be legally binding and enforceable, you may wish to consider drafting a parenting plan.
There are many professionals who are able to assist you in this process should you require it. While a parenting plan is not enforceable and does not create legal obligations on either parent, the Court can, and usually will, consider what has been previously agreed in a parenting plan should a parenting dispute come before the Court at a later date.
Because of this, a parenting plan should be in writing, signed and dated. You can change it from time to time as your children grow and their needs change. It can be changed by another signed written agreement or initialled amendments.
There are situations and circumstances which may make a parenting plan impractical or inappropriate. In these circumstances you may wish to involve a lawyer and/or the Court or an impartial third party such as a mediator or an arbitrator.
Circumstances that may make a parenting plan impractical or inappropriate may include:
- If you and your ex-partner are unable to communicate on your own or reach an agreement in relation to the arrangements for your children;
- If there is a history of domestic violence or you have concerns about your safety or the safety of your children;
- If you have concerns that your partner will not abide by an agreement reached and/or you require the agreement reached to be binding and enforceable against all parties;
- In circumstances where you wish to have documentary evidence that you or your ex-partner are solely responsible for your children;
- Where your matter also relates to property or matrimonial assets and a distribution of those assets.
It is strongly encouraged that you obtain legal advice if any of the above factors are present or you are unsure of your legal position. However, obtaining legal advice does not mean that you are obliged to bring the matter before the Courts to obtain a resolution. Wherever possible, we recommend adopting a co-operative approach to resolving your parenting disputes with a view to avoiding litigation if it is appropriate to do so.
An alternative to a parenting plan is a Consent Order. These are enforceable and usually do not require a Court appearance. To find out more about the benefits of a Consent Order and the process involved click here.