Child Residence (Custody) and Contact Disputes

If you have children you maybe worried how your divorce or dissolution of your civil partnership will impact upon them. You may also worry that the whole process will be more complicated because you have children.

The good news is that, if you can reach an agreement with your former partner as to where the children will live and how much contact they’re going to have with each of you, there’s no need for the Court to become involved.

The process for the divorce / dissolution is only marginally different if there are children. You’ll need to complete an extra form (a Statement of Arrangements for Children) to reassure the Court that the children arrangements are adequate and, in most cases, that will be the limit of the Court’s involvement.

The Court will only become involved in the children arrangements if you and your former partner cannot reach an agreement. If that’s the case, one of you will need to ask the Court for assistance. Alternatively, the Court will become involved if it has concerns that the children’s welfare needs aren’t being met.

Impact on children

The impact of a divorce or dissolution on children shouldn’t be underestimated. However, most children with separated parents still grow up to be well balanced and well adjusted adults.

There are many free resources available to help you assist the children to adapt to the new circumstances. The Resolution website provides a lot of useful information. In addition to general advice, you’ll see that they provide workshops to assist parents. Many people have found their workshops helpful.

Issues to resolve

The two main issues for you to resolve will be:

  • Child custody (residence): who the children will live with;
  • Contact: when, where and how often the children will see the parent they don’t live with. This will also include indirect contact such as telephone calls.

Although the term child custody is still widely understood, it is no longer a legal term. The legal terminology refers to residence and contact in place of child custody and access. This represents a shift from the rights of parents to the rights of children to have a stable home and a relationship with both parents.

Options for reaching an agreement

Court should really be the last option you consider to resolve any difficulties in respect of the children because of the financial and emotional implications. Other options you should try first are:

  • Direct discussion with your former partner;
  • Mediation;
  • Solicitor correspondence / round table meetings;
  • Collaborative law.

What rights do you have in respect of the children?

This will depend upon whether or not you have parental responsibility. Parental responsibility basically entitles you to be involved in all the important aspects of your children’s lives. For example:

  • Medical treatment;
  • Education;
  • Changes of name;
  • Religion;
  • Travel abroad.

Whether or not you have parental responsibility will depend upon your personal circumstances. Mothers automatically have parental responsibility. However, a father will only automatically have parental responsibility if he was married to the mother at the time the child was born.

If this was not the case, but the parents subsequently marry, the father gains parental responsibility automatically. If you’re a father and you weren’t married to the mother at the time of the birth, you’ll still have parental responsibility if the child was born after December 2003 and you were named on the birth certificate.

The Court’s Approach

If you and your former partner aren’t able to reach an agreement in respect of the children, one or both of you will need to issue proceedings. The Court will make its decision as to what’s in the children’s best interests using the Welfare Checklist (located in Section 1 of the Children Act 1989). Keep in mind that the Court puts the children’s welfare above what either parent may want or feel to be best.

The Welfare Checklist sets out all the factors the Court should take into account and is as follows:

  • What the children concerned want to happen (the weight placed on this issue will depend on the age and understanding of the children);
  • The children’s physical, emotional and educational needs;
  • The likely effect on the children of any change in their circumstances;
  • The children’s age, sex, background and any of their characteristics which the court considers relevant;
  • Any harm which the children have suffered or are at risk of suffering;
  • How capable each of the parents is of meeting the children’s needs;
  • The range of powers available to the Court.