Common Misconceptions

The separation was his/her fault so s/he doesn’t deserve the kids

As with divorce, fault in marriage breakdown is not relevant to the residence of children unless the behaviour or conduct affects the welfare of the children. Many people believe that when one parent has a new relationship or goes out socially that they are exposing the children to ‘moral danger’. The Court considers that a person’s lifestyle is generally their own business unless that lifestyle is so unstable or morally depraved that the children are in real danger of harm. This is rarely the case, even if a parent lives a fairly active social life.

S/he left the kids so s/he can’t have them

There are many misconceptions about how the Court decides residence.Many people believe that the parent who leaves the home and the children cannot subsequently seek residence for them. This is wrong. A person may have left the children behind for any number of reasons. They may have left in a crisis or may not have had a suitable place to accommodate them. The Court will look at who is best able to care for the children. If children are left for a considerable period with one person, however, this may be seen as acknowledgment by the other that this is the best place for them.

Women always get the kids

Many men mistakenly believe that they have little chance of obtaining residence and that the Court is biased in favour of women. The Court takes the view that a child should reside with the parent who can most adequately meet all the needs of the child.

The Court’s statistics show that men get residence of at least one child in 40% of all cases decided by a judge. Most separating couples do not seek parenting orders in the Family Court. Since women often bear most of the responsibility for children’s upbringing as primary carers, they often continue this role after separation by mutual agreement.