How is child custody determined?

When a marriage or de facto relationship breaks down, a lot of attention is focused on financial and property settlements. However, the welfare of your children should always be the primary concern.

In New South Wales, “Parenting Orders” determine where a child will live (custody) as well as the amount of time a child will spend with the other parent.
The court has a duty to make parenting orders that are in the best interest of the children.

How is “Best Interest” Determined?

The court determines what is in the best interest of children by evaluating both primary and additional considerations.

The primary considerations are divided into two main questions:

1. Can the child have a meaningful relationship with both parents?

2. Will the child be safe from physical or psychological harm (e.g. from abuse, neglect or family violence)?

For additional considerations, the court will consider the extent to which each parent has met their responsibilities.

Considerations may include:

  • The relationship between the child and each parent
  • The parents’ attitude to parenting
  • The parents’ willingness to maintain a relationship between the child and the other parent
  • The parents’ capacity to provide for the child’s needs
  • Any history of incidents such as family violence
  • The child’s wishes – taking into account the child’s age and maturity
  • Any other factors the court deems relevant

When putting together a custody application, it is vitally important to explain why living with you will be in the best interest of your child.

Our family lawyers can help you compile an application that observes the best interests of your children as well as you.

What if Domestic Violence Has Occurred?

If there is a history or violence or a reasonable fear of violence, this will most likely factor into the court’s determinations.
If you have experienced physical or non-physical violence or you fear future violence, it is important to make an Apprehended Violence Order (AVO).

What Happens if the Parent with Custody Moves Away?

If you are applying for custody of your child but also plan to move, it is important to explain why the relocation is in the best interests of the child.

Your application should also include a proposal for how the child will get to spend time with the other parent, such as regular visits or holidays.

Your custody application is more likely to succeed when:

  • There are good reasons for the parent wanting to relocate
  • The parents are focused on maintaining communication with the child
  • Costs have been properly considered
  • Travelling proposals fit into the child’s lifestyle and needs
  • The child is older and can maintain meaningful relationship with both parents in spite of the distance

Contact DGB Lawyers

Our family law specialists can help you understand your rights and obligations and you give yourself the best chance of reaching an understanding with your former partner.
For reliable, responsive and personalised legal advice contact DGB Lawyers and make an appointment with one of our highly skilled and professional team members.

Email us at or through our online contact form.

Alternatively, you can call or visit one of our Sydney offices:
56 Central Avenue, NSW 2529
Ph. 02 4243 8930
96 Kembla Street, NSW 2500
Ph. (02) 4229 5699