Parental Rights vs Parental Responsibility: What Do These Terms Mean & When Do They Apply Legally
Parental rights or responsibility? When it comes to child custody and the legal rights of parents, the idea of ‘rights’ and ‘responsibility’ quite often get mixed up or they are used interchangeably. However, legally speaking, parental rights and parental responsibility are different: one refers directly to the rights a parent is entitled to regarding their children and their children’s lives, while the other refers to the legal obligations of a parent or legal guardian.
In this article, we’re going to unpack each of these terms, explain when they are legally relevant and when you should use them, as well as answering some of the most common questions people have about these family law concepts.
What are Parental Rights?
In Australia, parents have certain legal rights regarding their children and how they raise them. These rights are defined legally at multiple levels, including our federal laws and international human rights laws.
Australia is a party to seven core international human rights treaties that stipulate the rights of parents and children, including the Convention of the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR), which cover a range of topics including the rights of children (separating children, adoptions, refugee children, children, and the criminal process, etc.) and the rights and duties of parents. Ultimately, parents have the right to raise their children as they see fit, within the parameters of the law where they live. However, the best interests of the child do supersede parental rights.
But what does this mean practically for Australian parents? Essentially, the law in Australia allows the following as parental rights:
- Parents are allowed to raise their children in accordance with their values and beliefs.
- There will be no interference regarding decisions made by parents about where and how their children are raised unless there is reason to believe and/or evidence of the child’s well-being being at risk – i.e. abuse or neglect, including the child/children not receiving an education or necessary medical treatment.
- Parents have the right to child-care services and to access information on financial support and other support services (dependent on eligibility criteria).
However, if a situation arises where parental responsibility may be altered, or the child’s well-being is suspected or proven to be at risk, the best interests of the child immediately become the priority. As an example, the concept of parental rights does not include the right to have custody or contact with your children if one or more parents are suspected of child abuse or neglect (including physical or psychological harm). To use another example, during a separation or divorce, the parents will need to come to an arrangement for custody and sharing responsibility – whether this is one parent having sole parental responsibility or equal shared parental responsibility. In these types of situations (where parental responsibility may change), Australian family law requires the best interest of the child to take precedence.
When Do Parental Rights Legally Apply?
Parental rights apply until the best interests of the child supersede those rights or until the child turns 18 and is legally considered an adult.
Commonly Asked Questions About Parental Rights
The concept of parental rights is not very well-understood and is easily confused with other concepts. People can also incorrectly assume what parental rights include or to what extent they legally apply in particular situations. In short, there are a lot of misunderstandings about Australian family law, which is why we’re answering some of the most common questions we receive about parental rights:
Who has parental rights of a child?
The biological parents of a child have parental rights unless there are circumstances in which it has been deemed necessary to remove a child/children from a parent’s care. The Family Law Act states that both parents retain parental responsibility for their children up until they are 18 years old and must be involved in making decisions involving their children.
Can you relinquish parental rights?
The short answer is yes, you can legally relinquish parental rights in Australia. Relinquishing parental rights would remove all rights and responsibilities from the individual in question, which would mean they are no longer considered the child’s legal parent or guardian. In saying this, while a court of law may consider allowing you to terminate your parental rights, it is legally a complicated process, and you should seek legal advice before taking action.
If you are seeking to relinquish your parental rights or you are wanting to get sole parental rights, you should consult an experienced family lawyer like BurkeMead Lawyers.
Can you terminate parental rights due to abandonment?
There are circumstances in which a court may terminate parental rights due to welfare-related issues, such as abandonment. Child abandonment is generally when a parent or guardian (someone with parental responsibility for a child) deserts their child with no regard for their wellbeing or safety. Child abandonment is understood legally from a welfare perspective, and almost every state and territory in Australia has legislation specific to child welfare issues.
In NSW, Section 71 of the Children and Young Persons (Care and Protection) Act 1998 states that a court can make a care order if it is satisfied a child is in need of care and protection for reasons that include when “there is no parent available to care for the child as a result of death or incapacity or for any other reason” (other reasons could include child abandonment).
When can parental rights be removed?
Parental responsibility can only be terminated by the court. This usually only happens if a child is adopted or the father’s behaviour warrants the removal of parental responsibility.
What is Parental Responsibility in Australia?
According to the NSW Family & Community Services, parental responsibility refers to the obligations (different responsibilities and duties) parents legally have for the development and welfare of their children. Parental responsibility can be innate or it can be court-ordered.
A person has ‘innate parental responsibility’ if they satisfy presumptions of parentage. According to The Family Law Act 1975 (Cth), this includes birth parents, adoptive parents, and those who become parents through artificial conception or surrogacy. Innate parental responsibility means the person/s are legally authorised to exercise parental responsibility without a court order.
Court-ordered parental responsibility is granted when the court recognises a person as a parent, allowing them to have authority to make decisions about a child and the child’s life.
Although other adults, such as step-parents or other family members, may be involved in the care and support of a child, only these parents have parental responsibility.
Your obligations continue until your child has turned 18 and only ends when they turn 18 years old. Divorce or separation cannot end the obligation of parents, and in this circumstance, the government and the court encourage both parents to exercise shared parental responsibility.
When Does Parental Responsibility Legally Apply?
Parental responsibility applies at all times until a child turns 18 years old. The shared parental responsibility may change due to separation or divorce, though (or any number of circumstances that impact a parent’s capacity to fulfil those responsibilities).
Commonly Asked Questions About Parental Responsibility
The concept of parental responsibility is understood as a set of legal obligations. However, some people are unaware of what responsibilities it includes and its’ place within Australian family law, which is why we’re answering some of the most common questions we receive about parental responsibility:
What are the responsibilities of a parent?
Parents are responsible for:
- Providing shelter;
- Providing food;
- Providing clothes;
- Ensuring the child receives an education;
- Making decisions regarding the child’s medical care;
- Provide emotional and social nurturing.
What does sole parental responsibility mean in Australia?
Sole parental responsibility means that only one parent or guardian has complete responsibility for making decisions about the child/children until they are 18 years old, such as where they live, their education, religious and cultural upbringing, and major medical decisions.
Having sole parental responsibility is not the same as sole custody of a child. Custody is the division of care and time spent with the child/children, so you can have split custody and the parent who has primary custody could have sole parental responsibility. Sole custody means a parent wants to have sole parental responsibility and sole care of the child.
What does equal parental responsibility mean?
Under the Family Law Act, it is presumed that both parents have equal parental responsibility (unless the court orders otherwise). Equal parental responsibility means that both parents will have an equal role in making major decisions about the child, including where they live, their education, religious upbringing, and medical decisions.
Following a divorce or separation, both parents are encouraged to have a relationship with the child (provided it is in the best interests of the child) and will often make an arrangement for shared parental responsibility. What shared parental responsibility will look like is different for every family and is usually outlined in parenting arrangements.
Who is entitled to parental responsibility?
According to the Family Law Act, birth parents, adoptive parents, and those who become parents through artificial conception or surrogacy are entitled to innate parental responsibility. For example, mothers who give birth to children automatically have parental responsibility for the child, as do fathers if they are married at the time of the birth or are named as the father on the birth certificate.
There can also be unique circumstances regarding how a child is raised that can lead to family members who are not the parents, such as grandparents or aunts/uncles, being granted parental responsibility by the court.
In Need of a Family Lawyer? Contact BurkeMead Lawyers Today
Divorce and separation are difficult times for families, especially families involving children. Not only is it an emotionally challenging time, but there are a lot of logistics that need to be worked out between parents regarding child custody, living arrangements, shared parental responsibilities, and parenting plans. This is why you need to work with an experienced family law firm whose team of experts knows how to navigate the family court and mediation, all while centering the needs of you and your family’s future.
Director of BurkeMead Lawyers, Emma Mead, is an Accredited Mediator with LEADR (The Resolution Institute), which is an international organisation promoting mediation for conflict resolution. Our legal team of experienced family lawyers will approach each case with compassion and understanding, keeping your best interests and the interests of any dependents front and centre.
Our team is based in Newcastle, NSW, but is available across the Hunter, Mid-North Coast, and Sydney for your family law matters and mediation needs. Speak to our team today to learn more about how BurkeMead can help you.
To book a consultation or inquire about availability, please contact us on 02 4902 3800 or send us an enquiry.