Co-Parenting of Infants and Young Children

Following a divorce or separation, it is often difficult to reach a parenting arrangement, all the more so when it comes to co-parenting of infants and very young children. Parenting arrangements for young children require careful attention to their developmental needs, with a view to their long-term best interests.

Legal framework

Australian law does not provide specific regulations on the co-parenting of very young children. Under the Family Law Act 1975, the care of children of all ages is guided by the same rules. In making parenting orders, the court must consider the best interests of the child as the paramount principal guiding their decision.  In determining what the best interests of the child may be, the court must consider, among other things. the particular psychological, emotional. And developmental needs of the child, and each parent’s ability to meet those needs. 

Co-parenting of infants

Very young children have distinct care requirements. This includes frequent feedings, frequent changing, and consistent care. In Barreto & Vogel [2013], the court noted that a very young child needs “a stable base to form proper attachments and feel secure”, which is facilitated by living predominantly with the person to whom he or she is primarily attached. As such, the court must assess whether shared care is in the best interests of a young child. For this reason, it is less common for a very young child to have equal time with each parent, compared to older children. Often courts are reluctant to make orders allowing for young infants to spend overnight time, or prolonged periods, away from their primary caregiver. 

Forgotten fathers?

In Australia, it is more common for very young children to spend most of their time with their mothers. This is sometimes related to practicalities (such as breastfeeding and access to paternity leave), but also a reflection of the fact that, in Australia, mothers are still statistically more likely to provide the bulk of physical care for young children. The court is reluctant to disrupt this pattern until the child is at least two or older, causing considerable distress and concern for fathers involved in family law matters with young children. For fathers who live separately, this presents the fearful prospect that they will not be able to properly bond with their children.

However, it is important to note that there is no presumption in the law that the person providing the dominant care for a young child will be the mother. As emphasised in Valdez & Frazier [2016], the outcome of any parenting matter is determined on the specific evidence of the individual case, and not based on presumptions about parenting gender roles. In cases where the father was previously the primary carer for the child, then it is more likely that he would continue to provide the bulk of physical care for the infant after separation. In addition, in cases where both parents were providing similar levels of physical care for the infant from birth, then the court is more likely to make an order of equal time between the parents.

Capacity and co-parenting

Of course, there are other considerations when it comes to making a Parenting Order. The capacity of each parent (or proposed caretaker) to provide for the child’s developmental, emotional, and psychological needs is an essential factor in deciding who should care for a child. An important inclusion in this consideration is the person’s willingness to seek support to assist with caring. This applies especially to parents with a disability, who might otherwise struggle to manage. This can also apply in circumstances when a person who has experienced family violence may otherwise have less capacity to care for a child due to unresolved trauma.

Overnight care

There is little consensus on whether infants and toddlers should stay overnight with the non-resident parent. Children are often at their most vulnerable and in need of the familiar at night. Arrangements should be guided by what is optimal for the child but limited to what is practicable in the parents’ circumstances. For instance, considerations could include the distance that the child must travel to the other residence, the accommodations for the child, whether the baby is breastfed, the child’s habitual sleep routines and the working commitments of the parents.

The consistency and reliability of a parent’s conduct is also an important factor in deciding whether overnight stays are in a child’s best interest, as well as the child’s stage of development and resilience. For instance, in Parks & Collins [2014], the court ordered that the father should not have overnight visits with his young child because he was not focused on the needs of his child, and the child was too young to communicate their own needs or self-soothe. The court did note, however, that the father could seek a variation on the order in the future, if the circumstances changed.

Navigating parenting arrangements for infants and young children under four years of age creates an additional level of stress. Please contact the family law team at Armstrong Legal on 1300 038 223 for any assistance with applying for a parenting order for a young child, or any other legal assistance.