If you and your partner separate, one of the toughest decisions you might be faced with is who the children will live with and/or how much time the children will spend with each parent.
Disputes over the children’s living arrangements are common. However, while this can be an incredibly emotionally draining and tense situation, it is far better if you and your partner can reach an agreement rather than being required to attend court and have a Judge make these decisions for your family.
By agreeing to the arrangements together, you’ll know that the decisions you make are in the best interests of your child or children and for your family circumstances. Plus, by avoiding going to court, you’ll be able to save both time and money.
In the majority of circumstances, the agreement that you and your partner make should be formalised. However, depending on the relationship between you and your former partner, the age of the children and their attachments to each parent (among other factors), how you document your agreement can differ.
In this post, we’ll discuss two different ways that a parenting agreement can be documented: Parenting Plans and Consent Orders.
A Parenting Plan documents the parenting and living arrangements for a child. Within the document, which must be signed and dated by both parties, provisions should be made for where the child will live, how much time the child should spend with each parent and how major long-term decisions will be made (also known as parental responsibility).
It’s important to know that, although useful, a Parenting Plan is not a legally binding document. At any time, a Parenting Plan can also be replaced by a new one provided that both parties agree to do so.
Although your Parenting Plan will not be legally enforceable, should your matter end up in court, it is likely that the judge will consider the Parenting Plan before making an Order. For this reason, before you sign a Parenting Plan, both you and your partner should seek independent legal advice.
Overall, although they are not legally binding, Parenting Plans remain a useful option. This is because, if you and your former partner are still amicable with each other, it allows for flexibility and for the Parenting Plan to change as your family’s circumstances change (e.g. as the children get older).
Additionally, Parenting Plans can contain provision for child support and maintenance (unlike Consent Orders).
Much like a Parenting Plan, a Consent Order must also be signed and dated by both parties. It must also contain information about who the child will live with, how much time it will spend with both parents and how major decisions will be made.
The main difference between a Consent Order and a Parenting Plan is that once the Consent Order has been signed by the parties and sealed/approved by the Court, it becomes a legally enforceable document. As a result, unlike a Parenting Plan, it can be very difficult to amend or change a Consent Order unless there has been a “significant change in circumstances” which varies from case to case.
However, if you and your partner are no longer on speaking terms, or you do not have the trust in each other to comply with the terms of a Parenting Plan, then a Consent Order is a good option, as it provides a long-term, legally binding basis for a parenting agreement.
When you’re choosing between a Parenting Plan and a Consent Order, you should always ensure that you’re putting your child’s best interests first. By setting your own guidelines and expectations rather than asking a Court to make a decision on your behalf, you’ll be able to ensure that the terms any Parenting Plan or Consent Order are the best outcome for your particular family circumstances.