NSW Does Wife Automatically Have Full Custody of Children?

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now


20 July 2016

I'm not sure if I'm in the right place, but I have a question about my wife moving out with the kids as part of our separation.

Things have been amicable to date and there is no history of domestic violence or substance abuse, etc. I have been in Federal Policing for many years.

My question is, prior to any parenting agreement being signed, what rights do I have if my wife just moves out with the kids? Does she automatically have full custody of children? How is it determined in the interim? What happens prior to any family court involvement?

Kind regards.


Well-Known Member
23 July 2014
Care arrangements for kids can be whatever you like while ever there are no parenting plans or court orders in place, and for most parents who are civil, it's not necessary for such plans or orders to be pursued. It's only if there's disagreement about something that parents may need to commence action to sort out the dispute by attending mediation and, failing that, going to Court.

Thus, there's no 'rights' to speak of, bar those that give all kids a right to know, spend time and communicate with both parents on a regular basis. There's also no automatic allocation of 'custody', either.

What you do have automatically, however, is shared parental responsibility, which means you have equal say about all major long-term decisions affecting the kids, such as where they go to school, what their care arrangements are, whether their names should be changed, any major medical interventions (such as counselling from a psychologist, etc) and what religious affiliation they are raised under.

I strongly suggest getting a parenting plan that you both agree on down on paper so the kids have a regular routine of when they spend time with you, and I really advise against accepting an 'every other weekend' regime.

The Court doesn't order such little time anymore due to legislation that states it must consider equal time or substantial and significant time, which is a mix of weekdays, weekends, holiday time and special occasions. Where more time is practicable, it will favour more time, so aim for at least five nights a fortnight, if not equal time.


Well-Known Member
27 September 2015
Yep, no clear answer as far as court goes. Your best bet is to get an agreement in writing. That is called a parenting plan. It is not legally enforceable and really it is toilet paper as far as enforcement goes, but it shows intent. So if the ex reneges on it, you can use it to show that there was an intention for x amount of nights a fortnight. Relationships Australia can help with that one...

You're better off getting consent orders signed before she moves out. They are legally enforcable.