Divorce and Children
In a divorce or relationship break-up, it can be the children who suffer more than anyone.
The life they have known is changed forever, there is often upheaval at home and it can have a lasting effect on them.
Deciding how best to look after any children, therefore, should be one of the over-riding priorities for any couple going their separate ways.
This involves minimising the impact upon the child’s daily life where possible, ensuring they are provided for financially and making sure they continue to benefit from being with both parents wherever possible.
The law is focused on the rights of the children, rather than those of the parents. You should consider what is in the best interests of your children and try and put aside any
personal feelings you have for your partner.
What the law says
If you were married, each party has parental responsibility and so is entitled to certain things, like knowing where the child is living. They can also apply to the court over issues
of contact or residence for their children.
In most instances absent parents – most commonly fathers – have the right to regularly see their children, know where they are living and have access to certain information about their upbringing, such as how they are doing at school.
If a couple split up and were not married, only the mother has automatic parental responsibility. The father may also have parental responsibility, depending on when the child was born and if his name is on the birth certificate.
Step-parents also have a certain expectation of being involved in the lives of the children of their new partners. Their rights and responsibilities though are limited.
The old ideas of custody and access no longer exist in law. Instead they have been replaced by a number of orders:
A Residence Order says where a child should live. The court can, in rare circumstances, make such an order in favour of more than one person, stipulating how long the child should spend with each.
A Contact Order regulates telephone calls, visits, night stop-overs, weekends or holidays with the absent parent.
A Prohibited Steps Order is called into play when one parent objects to something that the other parent is doing concerning their child. That parent can apply to the court for the other person to stop doing it.
The court can consider a specific issue order if parents are unable to agree on a specific aspect of their child’s upbringing.
In all of the above cases, an order must be applied for and granted by the court. A lawyer will need to be instructed to act on your behalf and enter the relevant documentation.
It is usual to try and keep the children settled in the family home wherever possible to minimise the disruption to their daily lives. Account has to be taken of the accommodation
of both parents though to ensure the children are in safe, secure and suitable
surroundings when they are with the absent parent.
If children do remain in the family home as their main residence with one parent, that parent may also have to prove they can cover the costs of living there.
Getting a divorce
When a divorce petition is filed at court, there must be a statement filed at the same time setting out what has been agreed about where the children will live, contact with the
absent parent, who will be looking after them during school holidays, educational arrangements, and detail any special health needs. Provided both parents agree, the courts will not normally interfere.
The couple should put the needs of the children foremost and be able to put their own differences aside to agree where they should live, etc.
At this early stage, a dedicated family lawyer or one specialising in the Children Act should be consulted. They will be able to help you come to an agreement if there are disagreements and give detailed information on the rights of both parents.
Parental Responsibility
Parental responsibility 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 and their
property’.
That means, if you have parental responsibility, you are recognised in the eyes of the law as having all the legal powers to make appropriate decisions in relation to the
upbringing of your child.
It is also important to note that if you have parental responsibility, this does give you the legal right to see your child but DOES NOT guarantee contact
On a practical level it will, among other things, allow you to contact your child’s GP to obtain or discuss medical treatment for your child, and to play an active role in your child’s
education, giving you access to school reports and parents’ evenings.
A mother automatically has parental responsibility, as does a married father irrespective of whether the marriage to the mother occurred before or after the birth of the child. As from 1 December 2003, unmarried fathers of children whose birth is registered on or after this date, provided they are named on the birth certificate of the child, also have parental responsibility.
Fathers of children whose birth is registered before 1 December 2003 who haven’t acquired parental responsibility by virtue of marriage, or unmarried fathers of children whose birth is registered after 1 December 2003 and are not named as father on the child’s birth certificate, do not automatically have parental responsibility. This means that they are not recognised in law as having all the responsibilities relating to a child, such as being able to give permission for medical treatment or being entitled to updates on a child’s progress at school.
How to obtain parental responsibility
Many people are shocked and hurt to find that, if parents are unmarried, it is only the mother who has automatic rights with regard to their children.
A father not married to the mother can get this if the two of them make an agreement called a Parental Responsibility Agreement, or by court order. Without parental responsibility, a father has no right, for instance, to consent to medical treatment or be
involved in the child’s education.
So, if the couple split up, the mother automatically has the right to have the children with her where she wishes and the father has no say at all, unless he has an agreement or court
order.
Parental responsibility can be gained by:
- marrying the mother of your child
- entering into a voluntary Parental Responsibility Agreement with the mother
- obtaining a Parental Responsibility Order from the court.
Before the court will make an order granting parental responsibility, a father would need to establish that there is a degree of commitment to the child, a degree of attachment exists between the child and the father, and that the application is being made purely
in the interests of the child’s welfare.
Once you have parental responsibility, it must be exercised appropriately and jointly with the mother of the child.
Parental responsibility comes to an end when the child attains the age of 18, years or earlier if a court order is made.
Parental Responsibility Agreement
What is a Parental Responsibility Agreement?
Parental responsibility is a legal concept that consists of the rights, duties, powers, responsibilities and authority that most parents have in respect of their children. It includes the right to give consent to medical treatment. Normally, the consent of all those
with parental responsibility is needed before a child’s name can be changed or
they are taken out of the country.
A parental responsibility agreement gives those rights. An unmarried father often does not have suchrights . A parental responsibility agreement is particularly useful:
- for unmarried fathers where the child was born before 1 December 2003
- in cases where an unmarried father of a child born after 1 December 2003 is not on the birth certificate for some reason
- where a couple marry and the other party already has a child
- in all Civil Partnerships where either party already has a child, or gives birth after the couple become civil partners
Child Access Laws exist to protect the rights of the non-custodial parent after separation or divorce. Access is the privilege of the non-custodial parent to visit and interact with a child
and is determined by an Access Assessment. The assessment uses a set of guidelines to evaluate what sort of visitation arrangement is in the best interest of the child and is performed by an assessor assigned by the court.
What is Child Access
Child access is the ability of a parent to engage and interact with their child after divorce or separation has given custody to the former partner. Generally, the parent given or allotted custody is the one who bore the most responsibilities in regards to the child prior to separation, if the couple had once lived together. Child access differs from custody in that it moderates visitations and involvement, based on the best interest of the child. No law promises the right of a parent to access their child if guardianship is not awarded, but it is almost universally accepted that, in most cases, it is in the best interest of the child to have a relationship with both parents.
How is Child Access Determined
When determining degrees of access between a parent and child, the court will consider multiple factors. Most often, the parents both consent to a set schedule of visitations within a court of law, but occasionally they will opt to work out visitations as needed,
informally. In instances of battling parents who cannot come to an agreement as to child custody and access or of a child protection case, the ruling judge will administer a test to determine what is truly in the best interest of the child. This is called the Child Custody and Access Assessment. The test helps a judge decide by using the following factors: the love, affection, and emotional ties between the child and those seeking custody, the views and preferences of the child, the length of time the child has lived in a stable home environment, the willingness and ability of those seeking custody to provide guidance,
education, and necessities for the child and to meet special needs, plans for
proposed care and upbringing, permanence and stability in the home unit where
the child will live, and the relationship between blood/adoption between those
seeking custody and the child.
What to Expect During an Access Assessment
The parents applying for custody and access may be able to select an independent assessor or may be assigned one. If the parents are able to choose their own assessor, they are able to review the professional history of multiple assessors to select one whose background is most relevant to issues particular to their case. Once an assessor has been
assigned, he will gather and consider court records pertaining to current action, medical histories, criminal reference checks and other records that indicate healthy domestic function. Interviews will also take place, including everyone whose presence will routinely have bearing on the child’s life. This includes both parents, new partners and, depending on extended family involvement, may include school administrators, employers or colleagues. After completing research, the assessor will compile a report that details their
findings and suggests or outlines parenting arrangements that will most benefit the child. This information is shared during a disclosure meeting with the parents and their possible lawyers, which signifies the end of the assessment.
Child Access Laws in the UK
The British legal system prefers not to intervene in arrangements for children.
The majority of parents who divorce manage to decide child care issues without the intervention of the courts in the U.K. Indeed the courts are reluctant to get involved, and
divorcing couples are encouraged to try and reach a resolution. In some cases this might involve the use of mediation. The main law covering all issues relating to children in the U.K. is the Children Act of 1989. In this legislation, it is stipulated that a court will only make an order concerning a child if not making the order would be more detrimental to the child.
Parental Responsibility
Both parents should be involved in child care.
Parental responsibility is a concept central to The Children Act. Both married parents automatically have it. An unmarried father may have to apply to the court for it, if the mother is not agreeable to his having it. Parental responsibility may also be applied for
in some circumstances by other people, such as grandparents. The key thing to bear in mind about parental responsibility is that a parent does not lose it if he divorces and no longer lives with the child. He must still be involved in decisions relating to the child.
Shared Custody
A parent may apply to the court for a contact order.
This is the ideal, and thesolution most favoured by courts. The child may live with each parent for part of the time. This does obviously require some consensus between the parents. When this cannot be reached, typically because one or both parties are bitter
following the divorce, then problems arise, and one parent may apply to the
court for a contact order.
Problems
The problem arises when, typically, one parent makes it very difficult for the other to see the child, regardless of the contact order. She may make excuses that the child is unwell, or visiting a friend or has to be back early for some reason. The courts are beginning to
take a dim view of this behaviour, probably due in part to campaign groups like Fathers4Justice, and are now more likely to enforce penalties on the errant
parent.
