Coming to an agreement about issues, such as where your children will live after you separate from your spouse, can be difficult. Your partner may not always agree with you regarding what is best for your child/children. It is not unusual for things between two separating parents to become strained.
The emotional stress of a relationship break up, coupled with the worry of how your children will cope with you and your partner no longer being together, can result in a very tough situation for all concerned.
When children are involved, it is often not just a matter of cutting all ties with your other half at the end of your relationship. The knowledge that your ex-husband or wife will potentially be in your life until your children grow up, and beyond, can be painful.
The early stages of your divorce can be the most difficult and many couples find it hard to agree what will happen to their children at this point.
Children themselves will often be struggling to come to terms with what has happened. It is not uncommon for children to blame themselves for the break up of their parents’ relationship. It’s important to encourage children to talk about their feelings (with both parents present, if possible) and explain to them that it’s not their fault. It is often necessary to re-enforce this throughout the process.
Encouraging your children to be open with you about what they are going through is vital. If possible, it can be helpful to sit down with your spouse and explain to your children, in an age-appropriate manner, what is happening and what they should expect. It may seem obvious, but it is vital to keep repeating that although your relationship with your spouse has broken down, it doesn’t mean that either of you will be there for, or love, your children any less.
For more information and advice about how to talk to your children about divorce, visit the NSPCC website.
As we touched on above, the early stages of a relationship break up can be extremely emotional, making it difficult to agree on what is best for your children when you separate.
Talks with your partner at this stage can often end in arguments. However, as time moves on, discussions regarding child arrangements will hopefully become more productive and an agreement can sometimes be reached between parents, without the help of a third party.
However, sometimes it is necessary to get some external help to come to an agreement.
Many couples use mediation to help them come to an agreement about what will happen to their children when they separate. This is where an independent, objective third party, aides your discussions.
Alternatively, you could consider going to counselling, either with or without your spouse, to discuss what you think could be best for your children and why you feel this way.
Others find collaborative law helpful, where you and your spouse meet together with your respective solicitors experienced in collaborative law, with the aim of reaching an agreement about child arrangements.
If you are unable to come to an agreement, you may have to ask the courts to become involved. However, as this can often be expensive, time-consuming and confrontational and can sometimes further damage a relationship between parents, as some see it as a ‘winner’ and a ‘loser’ style battle, this is usually viewed as a last resort.
The government website describes those with parental responsibility as having certain legal rights and responsibilities towards the child/children they have parental responsibility for.
It talks about the most important roles relating to parental responsibility being providing a home for the child, as well as maintaining and protecting the child.
Someone with parental responsibility is also responsible for things such as choosing where the child will go to school, discipling the child and making decisions with regards to medical treatment.
It is also vital to point out that even if you do not have parental responsibility for the child/children in question, you may still have obligations towards him/her. One of the most common examples of this is a father who, for various reasons we’ll discuss below, does not have parental responsibility, but must still pay money towards supporting the child.
Mothers automatically have parental responsibility for their children.
This is not always the case for fathers.
A father may have parental responsibility in a various different circumstances:
Alternatively, parental responsibility can be gained by obtaining agreement from the mother or by becoming the child’s guardian.
Parental responsibility can also be given to someone through a court order, such as a parental responsibility order or by being named the resident parent on a child arrangements order.
If a child is adopted, the mother may surrender parental responsibility.
Those who are concerned that they may not have parental responsibility for their child, could seek independent legal advice from a specialist solicitor.
As with all of our articles, this only applies in England and Wales. For more information about Scotland or Northern Ireland or any other legal system, get in touch with a solicitor who specialises in the relevant area.
Those who don’t have parental responsibility for a child and want to get it, will need to have a connection to the child, for example, the child’s father or their step-parent.
If the mother agrees to giving the father or a step parent responsibility for a child, this can be done by filling in a form (there is a different form for fathers and step parents).
This form will then need to be taken to court to be signed and witnessed.
If the mother doesn’t agree to give you parental responsibility, it may be necessary to apply for a court order.
For those who cannot reach an agreement about what will happen to their child/children when they divorce, it may be necessary to ask the courts to decide.
Going to court should be seen as a last resort. It is for those who are unable to reach an agreement between themselves.
Indeed, anyone who wants to apply to court for a child arrangements order, has to go to a mediation information assessment meeting (known as a MIAM) first, except in certain limited circumstances. Speak to your solicitor for more information about these exceptions.
This meeting is designed to give you more information about other options you and your spouse could attempt, before applying to the courts for a child arrangements order. Normally, you and your partner will not go to your MIAM together.
If it is then decided that other alternatives are not suitable for you and your spouse, a form will be filled in by your mediator to this effect, to give to the court.
Sometimes, you may hear this referred to as a residence order or a contact order. Child arrangements orders have replaced these types of orders. However, it is often still referred to by its previous names.
A child arrangements order is a court order which sets out what the arrangements are for your children. It is made by a court when you and your spouse are unable to come to an agreement about issues, such as where your child/children will live, between yourselves or through other methods, such as mediation.
Child arrangements orders include information such as where a child will live and how often the other parent will have contact with them.
Contact arrangements can include issues such as how often the child will video call or email the parent they are not living with and when they will see them face-to-face.
Some child arrangements orders are very detailed (such as when and where a meeting between a child and a parent will take place) whereas others are more ‘loose’ and leave the finer details for the parties to work out between themselves.
Specific Issue Orders are also used by courts to rule on specific issues regarding how a child is to be brought up.
These can include what religion a child should be brought up in or where they should be educated.
Sometimes, people apply to the courts for an order to say that the other parent cannot do something with regards to the child.
This is known as a prohibited steps order.
We often see this type of order being used to stop a child from being taken abroad.
The mother or father of the child in question, as well as anyone with parental responsibility, is able to apply to the courts for a child arrangements order.
If you do not fall into any of these categories, you may have to apply to the courts for permission to apply for a child arrangements order (or any of the above orders), first.
If you are a grandparent and want to apply for a child arrangements order (and you don’t have parental responsibility), you will need to apply to the courts for permission to apply for a child arrangements order. Grandparents do not have the right to apply for the order without the court’s permission.
The child’s welfare will always be the court’s overriding concern when deciding the terms of a child arrangements order.
There are various stages that need happen before a final hearing with regards to child arrangements orders, with a First Hearing Dispute Resolution Appointment (FHDRA) usually set for around 4 weeks after the application.
As the process can sometimes be lengthy, a judge may make orders about what the arrangements will be for the children in the interim, until the date of the final hearing, if the parents cannot come to an agreement about this.
Although a child’s views about who they would like to live with may be taken into account when making a decision about child arrangements orders, a judge is under no obligation to go with the child’s wishes, if they do not agree that they are in the child’s best interests.
The courts will consider issues such as how each parent can meet the child in question’s needs and whether there is any risk to the child.
In order to apply for this type of order, it is not necessary to have a solicitor representing you. However, it can be helpful to obtain specialist legal advice from a solicitor regarding your circumstances, in order to prepare you for the process ahead.
An experienced solicitor may also be able to help you to come to an agreement with your spouse without needing to go to court, which could save you a great deal of time and money and help to keep your relationship with your spouse more amicable.
Our expert family law solicitors can help you with a range of legal issues relating to child arrangement orders, including:
For more information call our divorce solicitors on 0845 862 5001 or email mail@austinkemp.co.uk.
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