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A guide to child custody

Family & Matrimonial - March 15th, 2021

Any separation is going to be a very upsetting time for children, whatever the circumstances that have led to it and this is why it is especially important that great care is taken.

When a couple decide to separate and go their different ways there will be many things to be considered. But despite the seeming importance of agreeing over the division of money, property and other assets, where children are also involved it is their welfare and future well-being that is of the utmost importance.

Any separation is going to be a very upsetting time for children, whatever the circumstances that have led to it and this is why it is especially important that great care is taken to ensure that their long-term interests are foremost in everyone’s minds.

Naturally, the most crucial of these is where they will live, whether they will spend time with both parents and how this time will be divided. Primarily, the matter of child arrangements concentrates on resolving these issues and there are also a number of other considerations such as what financial support will be provided for the child, or children, as well as how decisions will be made about where they are educated and even when and where they will go on holiday.

This all means that the more prepared any parent or guardian is to resolve all these matters during a divorce or separation, the better it will be for everyone who will be affected.

The guide that follows will try to answer many of the questions that often arise surrounding child arrangements. But it is also essential to seek the sort of expert family law advice that a solicitors like Eatons is well-qualified to provide.

When child custody arises

While separation between a couple may become a long and drawn-out process in which one or other partner is still living in the same home, there will come a time when two households are created.

It is from this point that the living arrangements of the children will need to have been firmly established. This is both from a practical perspective and an emotional one. No-one would disagree that stability is vital for children at any age and having a place, or places, that they can call home is an essential part of this.

In an ideal world, the question of where children will live will be resolved easily and amicably between separating partners, and very often it is.

You will even find that there is a considerable amount of help available including something called the Parenting Plan that has been put together by the Children and Family Court Advisory and Support Service (CAFCASS). This is a template form which contains the prompts most people need to work out a solution that best suits everyone involved. Spending a little time filling it out can resolve many issues and clarify thoughts and feelings about how things may be able to work.

Child Arrangements

Although the word used in law is to live with or spend time with, it’s undoubtedly more useful to consider this as meaning residency. Firstly, it’s a word that sounds a little less legalistic, and secondly it more accurately represents what is being considered, namely where children will live and what proportion of the time they will live at each of the parents’ homes.

Residence is underpinned by the parental responsibility that each partner has and this is defined as: ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child’.

One of the main responsibilities is to provide a roof over any child’s head and this is also considered to be a right of parenthood. It’s always a right conferred on a mother and is shared with the father provided that he:

  • Was married to the mother at the time of birth
  • Is listed on the birth certificate
  • Has named parental responsibility with the court order or has entered into a parental responsibility agreement with the mother.

Where there is joint responsibility, there’s nothing in law that specifically states that either parent has the automatic right to have their child or children live with them exclusively.

Joint Residency (Live with order)

While the law has more qualifying requirements for fathers to gain residence, many see this as a relatively archaic ruling. In today’s world both partners are equally likely to have careers and need to spend time out of the home and working to earn a living.

To reflect this, joint residence (live with order) tends to be the norm, especially when the split is a reasonably amicable one. However, it is important, even in these circumstances, to have a clearly defined agreement about how the residence matters will be divided.

When matters can’t be decided

It’s an unfortunate but frequently occurring situation that the matter of child residence can’t be resolved between parents. And, while parents may feel like they are the victims in these circumstances, it is the children’s interests which must always be the focus of attention.

Often, mediation can provide a solution as it is overseen by a neutral person who is not directly involved and who will always have the best interests of the children as their guiding principle. Indeed, most courts will insist that proper steps such as mediation have been taken before resorting to the law.

The Child Arrangement Order

Should all efforts to reach agreement fail and it become a matter for the court to decide, then the ultimate aim will be do draw up an official document called a Child Arrangement Order.

This will draw up a list of rules and requirements that are enforceable by law and which will cover every aspect of caring for the children involved.

Generally, before a hearing a representative of CAFCASS will spend time with the family to get a fully rounded picture of the needs of any children involved.

They will then put together a report to be submitted to the court which will include their recommendations. It’s important to work with CAFCASS and be as co-operative as possible in order to reach the very best outcome. The court will use the report as the basis for any decision that will be made as well as taking into account:

  • The wishes and feelings of the child while taking into consideration their age and understanding of the situation.
  • The physical, emotional and education needs of the child
  • The possible impact on the child if their circumstances change
  • Harm the child has suffered or is at risk of suffering
  • How capable each parent is of meeting the child’s particular needs.

The court may also consider the other relationships children have with wider family members such as grandparents, uncles and aunts, especially where they also share in the caring responsibilities.

While the Child Arrangement Order is legally binding, it can also be changed as circumstances do. However, the over-riding factor that will determine whether this is permitted will be the effect it has on the wellbeing of the child, or children, in question.

Financial responsibilities

As well as having responsibilities towards providing a safe and secure home for the children of separating parents, there are financial responsibilities that need to be taken into account as well. Generally, the burden will be on the parent with whom the children do not live most of the time to also provide additional financial support.

This can either be an amount that is privately agreed or left to be determined by Child Maintenance Service. They can also take on responsibility for ensuring the money is collected from one parent and paid to the other on a regular and frequent basis. This financial support generally continues until the children have finished full-time education.

A factor that can affect the level of financial contribution required is the involvement the paying parent has in the day-to-day life of the children. The more physical and emotional support that they provide on a regular basis, the less they may be required to pay. When left to the Child Support Agency to calculate, income and living circumstances will also be taken into account.

Steps to help a parent gain a child arrangements order

When court does seem to be the only solution to making child arrangements many parents are worried that if things don’t go their way they may well lose the right to spend time with their child or find it being severely limited.

Despite the more forward-thinking nature of the courts today that sees equal parenting as the norm, this is a worry that particularly affects fathers. After all, it is generally stories in the press that we read about fathers being prevented from seeing their children and carrying out eye-catching publicity stunts to achieve what they regard as being justice.

But, ultimately, the court will always base any decision on what is best for the children in any separation – and this hinges on the relationships that they have with the respective parents. There are certain pieces of evidence that the court will be looking for and these will often be included in the report that the CAFCASS officer has compiled. They will also be seeking evidence of:

  • A strong relationship: There must be a strong and obvious bond between parent and child that shows support and care.
  • Genuine involvement: Attending school parents’ meetings or devoting time in evenings and weekends to taking children to activities like sports events or music lessons are all clear signs of genuinely involved parenting.
  • Giving reliable financial support: Even before any formal arrangements are put in place to pay for living expenses, showing willing to provide financial support is something that the court will be looking for.
  • Providing a safe space: If you hope that your child will be allowed to stay in your home you will have to show that it is a safe and comfortable place for them to be when away from their main residence.
  • Respect for the other parent: No matter how much the relationship has broken down and whatever other differences there are between you, it’s vital that you always respect the other parent. Not doing so can be very damaging to the emotions of the child and could seriously compromise your chances of gaining a child arrangement order.

Above and beyond taking the steps necessary to increase your chances of getting a joint living with order, remember that the most important aspect is the overall wellbeing of your child.

So, together with your partner, you must make sure that they feel loved and supported. It’s also important to explain to them exactly what is going on, obviously depending on their level of maturity and understanding.

You should also very obviously make time just for them to do the sorts of things they enjoy and to reassure them that these times will continue even after you have separated from your partner.

And, linked to the final point in the above list, you should avoid both conflict with your partner in front of your children and criticising them for their behaviour.

Do all of these things and you won’t just increase your chance of a joint live with arrangements, you will also be helping to minimise the emotional distress that any separation is certain to cause.

A final word

Hopefully, if you are facing separation and have children you will be able to agree on joint live with arrangements without recourse to mediation or the court. But even if you do it may be in everyone’s interest if you do seek advice from a family law specialist like us.

We can help to easily change informal arrangements into more formal ones that will avoid any confusion or misunderstandings in the future.

So if you would like to know more on the subject, or ask for our help, please don’t hesitate to get in touch with us to arrange an initial meeting.