Child Custody & Care Arrangements in Separation and Divorce
Child custody and physical care arrangements are an important and often contentious issue between parties who have separated or are divorcing. While separation or divorce is a difficult time for the entire family, it often presents a significant strain on the most important parties of the relationship: the children. It is in the children’s best interest that the continuing role parents will have in their lives be resolved as quickly and amicably as possible.
Child custody and care is often agreed between the parents, sometimes with the help of a mediator or negotiation between the parties’ lawyers. Under the Children Act 1989, the Court will only make a formal order when child custody and care is in dispute. There is a presumption that the Court should not intervene in such matters unless it is in the best interests of the child.
The Children Act 1989 addresses parental responsibility, residence, contact, prohibited steps and specific issues relating to children and child custody and care. English law is very child focused in its approach to family breakdown. The welfare of the children is the Court’s paramount concern. It is critical that parents communicate with one another at all times about all matters relating to the children. This responsibility rests on both parents and its significance cannot be overstated.
This area encompasses all the rights and duties a parent has in respect to raising and caring for a child. It involves making decisions about schooling, religious upbringing and medical treatment. Both parents automatically have parental responsibility if they are married, and unmarried fathers can acquire parental responsibility by being named on the birth certificate, by agreement with the mother or by application to the court.
This is where the children live on a day-to-day basis. Residence can be joint (shared physical care) when the children spend equal amounts of time with each parent. In arranging a shared care agreement, it is important that the children regard both parents’ properties as “home” and that the parents communicate effectively.
The law states that it is a child’s right to see both parents and to enjoy regular direct contact (face to face, staying overnight, holidays, etc.) and indirect contact (telephone calls, e-mails, etc.). Often a regular timetable for contact can help with household routines, but flexibility and cooperation is encouraged and paramount for effective parent-child relationships. There are certain times of the year that are very important and require special consideration for the sake of the children. These include parent and child birthdays, holidays and special family events. Often, parents arrange alternating yearly schedules with respect to the child’s birthdays, national holidays and school holidays.
This limits certain parental rights; for example, an order may be issued preventing a child from being taken abroad. This is a rare and drastic step to take and courts do not grant them often or lightly. There is an enormous burden of proof on the parent requesting such steps be taken.
This is an order by the Courts that resolves a particular disputed issue between the parents concerning the child, for example, where a child is to be educated. Again, this is a rare application and parents should do their best to work out such issues between themselves, with a mediator or through negotiation between their respective lawyers.
When considering the best interests of a child with respect to child custody, care and specific issues, the Court must take into account:
- The child’s wishes and feelings in light of their age and level of understanding;
- The child’s physical, emotional and educational needs;
- The likely effect on the child of changes in circumstances;
- The child’s age, sex and background, together with any other characteristic that the Court considers to be relevant;
- Any harm that the child has suffered or is at risk of suffering;
- The parents’ capabilities in meeting the child’s needs (this can also apply to any other relevant person, such as the parent’s new partner); and
- The range of powers available to the Court to deal with the matter.
If the Court has to become involved in decisions about arranements for the children, the first step is to go forward with a conciliation hearing to see if there is any possibility of reaching an agreement. If this does not work, then the court will set a timetable to progress the case, which will include:
- Both parents filing and exchanging statements setting out their respective cases;
- A CAFCASS (Children and Family Court Advisory and Support Service) officer preparing a report making recommendations as to what order should be made;
- A further directions hearing to see if agreement can be reached in light of the CAFCASS recommendations; and
- As a last resort, a final hearing will be set and the judge will decide the matter.
While child custody and care can be arranged or modified by the parties themselves, it is always advisable to have important child custody documents drafted by an experienced lawyer who is well versed in the rules and requirements under the law. At Prince Evans, Elizabeth Kornat serves as our resident legal expert in all matters pertaining to child support and child custody.