Divorce and children – Your Guide

Dealing divorce and children following the breakdown of a relationship can be an extremely difficult time for anyone.  In this article we shall explore the best practices on how to deal with divorce and children.

Reaching an agreement with your spouse about where your children will live when considering divorce and children, can be the most painful part of the process.  How often your children will have contact with the other parent and the form this contact will take (such as face-to-face, video calls, phone calls etc.) can also, for some, be tough to agree.

Reaching an agreement on divorce and children matters

For many people, it is possible to reach an agreement regarding arrangements for children, between themselves. Decisions need to be made regarding where the child/children will live on a day-to-day basis and how often they will have contact with the other parent.

It is also possible to come to an arrangement about any child maintenance payments between yourselves. Normally, the person whom the child was living with on a day-to-day basis, would receive child maintenance from the other parent.

Unlike when it comes to agreeing your financial settlement upon divorce, there is usually no need to get your child arrangements made into a court order.  Speak to your solicitor if you are concerned about this.

How to reach an agreement of divorce and children matters?

When a relationship breaks down, communication can sometimes become an issue.

If you and your spouse are unable to reach an agreement about who your child/children will live with when you divorce, there are other methods that you could try, before going to court to ask a judge to decide for you.

Mediation, where an impartial third party aids discussions between you and your spouse, with the aim of reaching an agreement about an issue, is one option for those who are struggling to agree where their children should live.

Alternatively, collaborative law, where you, your spouse and your respective solicitors meet to discuss your options and work towards (hopefully) reaching an agreement regarding child arrangements, is another option.

Sometimes, parents cannot agree on child maintenance. If you are unable to reach an agreement about child maintenance with your spouse, you can contact Child Maintenance Options for help. This service, provided on behalf of the Department for Work and Pensions, is there to provide parents with free impartial information and support regarding child maintenance.

Court should normally be seen as a last resort

If you and your spouse are unable to reach an agreement about where your children should live and the level of contact they should have with the other parent, you could ask a judge to decide for you.

Going to court can be time-consuming and costly and in normal circumstances should be seen as a last resort.

However, it is sometimes necessary to ask a judge to decide for you without trying other methods first, such as if there has been a history of violence in your relationship.

Divorce and children can be a worrying and daunting prospect for all concerned. When couples divorce one of their main concerns is what will happen to their children. Kim Basinger, who divorced from her husband Alec Baldwin when their now 20 year old daughter was only 5, spoke about her ‘heavy duty’ divorce and custody battle.

Divorce and children can add to the pressures of the divorce process, as we know any relationship breaking down can be a stressful and difficult on its own. We look at your options when it comes to childcare and child maintenance.

What is classed as a child in a divorce?

When considering divorce and children, for the purposes of child maintenance – a child is someone under the age of 16 or under 19 and in full-time education.

You can arrange childcare and maintenance yourself

If you and your partner can agree about who will look after the children and the level of maintenance the non-primary carer will pay, then it is possible to agree this between yourselves with no outside help.

Divorce and children – Mediation

A mediator – an independent third party – could assist you and your partner to discuss your childcare and maintenance options in order to help you come to an agreement. It’s worth noting that you usually have to prove you’ve at least considered mediation before you go to court, although this is not the case when there has been, for example, domestic abuse.

Divorcing with children – Child Support Agency

Soon to be replaced by the Child Maintenance Service, the primary carer of the children can make an application to these agencies for child maintenance – although which one you can apply to does depend on a number of different factors. Both of these agencies can take payments directly from income.

If one of the parents lives abroad, then these agencies won’t be able to make any kind of assessment. It may also not be the best option if you or your partner is a high net worth individual with complex finances.

Children are the court’s primary consideration

When considering divorce and children, if you are unable to decide between yourselves or with a mediator then the court can be asked to decide what is best for the children.

When a marriage breaks down and the court is asked to look at arrangements for any children involved, their primary consideration will always be the children’s welfare and needs. The financial provision for divorcing with children is usually decided at the same time as other finances, especially if the person taking primary care responsibilities has much less wealth and assets than the other parent. The rule of thumb is that if one parent is taking the majority of responsibility for looking after the children then the other must pay towards the children’s upkeep.

Court Orders when divorcing with children

There are a number of different court orders that you’ll be able to apply for such as a Child Arrangement Order or a Specific Issue Order.

A Prohibited Steps Order is also possible to make sure the other parent can’t make any decisions about the upbringing of the child.

Divorce is an emotional time, especially when there are children involved. Specialist legal advice as to what to expect during the process can help you to understand what your rights are and decide what is best for your children. Getting this advice early on can hopefully reduce the likelihood of a long and drawn out custody battle.

How to deal with divorce and children

Dealing with children and divorce can be an emotional and unsettling time for anyone – especially children. There are a number of things you can do to help your child through the divorce process, such as listening to their concerns and trying to maintain any family routines and rules.

To help children, during a divorce, to understand what is happening it is a good idea to sit down with them and your spouse (if possible) and explain to them that you are separating in a way that they will understand. It is important to reassure them that you both still love them and that they are in no way to blame for your decision to separate. Make what you’re saying suitable for the age of your child – for example a teenager will need and want a lot more detail and reasons than a child of 5 years old. The younger the child, the more simple the explanation.

There are a great deal of resources online that can help you deal with your children and divorce through the different parts of the divorce process. Action For Children offers a support service for families going through divorce and Kids Turn has some great resources. There are also many books you can buy that explain divorce in a more child friendly way.

It’s important to make sure that you have parental responsibility as this will ensure you have a say in any important decisions. The mother will always have parental responsibility. A father can have parental responsibility in a number of different situations. If the father was married to the child’s mother when the child was born or if he married the child’s mother after the child was born then the father will be deemed to have parental responsibility. As long as the child’s birth was registered on or later than 1 December 2003 and the father is named on the birth certificate then a father who never married the child’s mother can also be deemed to have parental responsibility. 

Another way to gain parental responsibility is by obtaining agreement from the mother or, alternatively, a court can order that someone have parental responsibility. Having this parental responsibility will mean that you will have a say with regards to your children’s religion or what school they’ll attend.

If you are worried that you may not have parental responsibility then it is important to seek independent legal advice from a specialist divorce firm, such as Austin Kemp Solicitors, as soon as possible.

For more information on this subject please visit our Legal Library.