Family Law FAQ: Child Custody

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Strictly speaking, there is no such thing as ‘custody’ in English law anymore. This is an outdated term which has since been replaced by the concept of child arrangements orders and parental responsibility. The fact that many parents still understand the process of arranging their child’s living arrangements following separation or divorce as getting custody is a testament to the generally murky understanding of this area of family law.

Divorce and separation are emotionally taxing processes for all, especially any children involved. Naturally, parents wish to carry out the necessary arrangements with as a little disruption to their child’s life as possible. We’ve gathered a series of common questions our barristers have been posed by parents and devised answers to them, to make sure your understanding of child arrangements orders is crystal clear.

Underpinning all decisions made in relation to children is the idea that the child’s best interests are the first consideration of the Court. Usually, the parents are the best people to decide what is in the child’s interests but when they disagree, the Court has powers to decide these issues. The Court can make orders setting out which parent a child is to live with, as well as when and how it sees the other parent. It can also stop a parent doing something (prohibited steps order) or make a parent do something (specific issue order).

How can we achieve ‘joint custody’?

We don’t talk about joint custody any more – the phrase is ‘shared care’. This can work for parents and children in England and Wales (in Scotland there is a separate legal system).

While parents can arrange for their child(ren) to spend equal time with each parent, this does not have to be the case. It’s all about working out what works best for your child(ren) and yourselves.

To achieve shared care, parents can simply agree the terms of their shared care themselves, including where the child will live and when they’ll spend time with each parent. They can use a solicitor if they would like to make the agreement legally binding. If they need help with this arrangement, they can use a Parenting Plan or use a mediator.

Sometimes, though, shared care is not in the best interests of a child – it may just be impossible due to family circumstances. It used to be the case that the parents were expected to get on well together for shared care to work. However, there are now cases where Judges have said that parents who don’t get on should still provide shared care so that neither one can exercise power over the other. That said, the Court will treat every case as unique and will balance all the different arguments to work out what is best for your child.

Do mothers have more rights than fathers?

No. Both parents would normally be expected to work together for the best interests of their child. If there are issues that they can’t resolve without the court being involved, one or both of them can make an application. The Court will expect them both to put the child’s interests first and will encourage them to settle their differences. If this is not achievable, orders can be made to resolve disputes.

What if I am an unmarried parent?

It makes very little practical difference if parents are married or unmarried.

My ex wants to move abroad – I won’t see my child! What do I do?

You need legal advice quickly. If you have parental responsibility (PR), your ex can’t move unless you consent or the Court approves the move. Even if you don’t have PR, there are steps you should be taking.

My ex wants to move to another part of the UK, which means I won’t see my child on the weekends. What do I do?

Again, see a lawyer quickly.

If you require advice, assistance or representation when it comes to child arrangements, our experienced, impartial Family Law experts are on hand to help. Thanks to our Direct Access service, we can pair you up with one of our specialists right away, even if you have not first consulted a solicitor. We also provide an outstanding mediation service, in which open communication is overseen by an impartial and fair barrister to achieve a mutually satisfying solution.

If you would like to arrange mediation at our chambers in Chelmsford or arrange a consultation with a barrister who can help you today, you can call us on 01245 605040 or find further details on our contact page.

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