One of the first things I am asked during an initial advice session with a client who’s thinking of filing for divorce is, “Who’s going to get the kids?” I always say to them, “Why don’t we look at it from your kids’ point of view? What’s best for them? Who are they going to get?”
Now, determining which parent the child or children will live with depends on each case. Despite what you may think, no one parent is favoured – both parents are viewed equally. All married parents have equal rights in law. Unmarried parents both have automatic equal parenting rights, as long as the father has jointly registered the birth of his child with the mother on the birth certificate (from 1st December 2003).
More and more these days, parents are making arrangements for the benefit of the children which can lead to an equal or near equal share of responsibility.
Sharing the care
I always say to my clients that just because you may be separating or divorcing, it doesn’t mean you stop being a parent. You’ll both continue to be parents, and the best thing to do is to try and work out an arrangement as to how you’re going to share the parenting. Remember, you used to share the parenting when you were together and you can still share that parenting now.
Residency and contact
You might be more familiar with the terms ‘custody’ and ‘access’ – these were abolished by the Children Act 1989.
Before the Children Act, the father, generally, had reasonable access and the custody order gave the wife all the parental rights. But now, both parents have equal parental responsibility, which doesn’t change because of a divorce.
The court can now make four types of order:
- Residence – decides when the children shall stay with each parent
- Contact – this sets out when the child shall see each parent
- Specific Issues Order – this looks at a specific question about how the child will be brought up, such as what school they will go to
- Prohibited Steps Order – this order stops the other parent from making a specific decision about the child’s upbringing
It used to be the case in every divorce that there was a custody order. Since the Children Act 1989, it’s completely changed. The Act states that the court shall not make an order relating to children unless it’s absolutely necessary. So in the vast majority of separations, there’s never an order relating to the children. The court expects the parents to work the matter out between themselves. If there is a dispute you may have to go beforehand to see if you can come to an agreement without the need to go to court.
Does my child have a say?
Your child’s wishes and feelings are always relevant and will always be taken into account. Usually, the older the child the more weight a court will attach to their wishes and feelings.
If there’s a dispute and you’ve been unable to come to an agreement and you’ve applied for a court order, a judge may ask a Cafcass worker to speak to your child to find out what they think and how they feel. The Cafcass worker will then prepare a report that the court can use when deciding any issues.
Divorce from your child’s eyes
Have you seen the recent BBC2 documentary, Mum and Dad Are Splitting Up? If you’re going through a divorce or know someone who is, it can really help you see how children can be affected by their parent’s separation.
How to get what’s best for your kids in your divorce
We understand what you’re going through. And we’ll be here for you throughout the whole process to help you get the right outcome for you and your family.
Our skilled mediators can help you settle your divorce or dispute without the need to go to court. But if your case does end up in court, we’ll provide all the necessary expert advice that you need.
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