How do they determine custody of a child?
Today we speak to our family law experts in Sherborne – Mogers Drewitt, there are so many questions around custody of children and this article answers commonly asked questions around how they determine custody of children after a relationship breakdown. We also spoke about this in a recent podcast with family law expert Simon.
First of all, it is important to state that while people often talk about child custody the term is no longer used in legal proceedings. The legal system instead refers to ‘contact’ and ‘residence’.
Both parents have Parental Responsibility for the child and the child will be supported in having a relationship with both if it is appropriate for the child to do so.
If the question is where the child is to predominately reside, then the court will look to what was the status quo prior to separation, i.e. who and how was the care of the child divided between the parents prior to separation.
If care was shared then this will be implemented following separation provided that the geographical location of the parties allows. A child cannot share time between both parents if one lives in London and the other in Bristol. When both parents are seeking to have the child predominately in their care, the court will consider what is in the child’s best interest by applying the statutory checklist which is set out below;
- The ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)
- The child’s physical, emotional and educational needs
- The likely effect on the child of any change in their circumstances
- The child’s age, sex, background and any characteristics that the court considers relevant
- Any harm that the child has suffered or is at risk of suffering
- How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs
- The range of powers available to the court under ChA 1989 in the proceedings in question
How hard is it to get full custody as a father?
The world has changed and we now have families where a child can have two fathers for example. The court recognises that parents of any permutation have to work and therefore they will have shared the care of their children. It is on that basis that the court will see that there is no reason why they should not share the children care following separation.
Having said that the most common division is still where the mother takes the lion share of child care while the father works and therefore usually a child remains with the mother.
Should either parent be deemed unable to care for the child the court will provide that the child predominantly reside in the other parents care but often the absent parent will have contact, but that contact is supported or supervised.
What is the most common child custody arrangement?
If the child/ren are to be shared then there are several permutations as to how this can work. Much will depend on the parents and the other commitments that they may have. I have had several couples who will do one week on, and one week off. This provides them with the opportunity to fully give themselves to their work, and their children in equal measures. Other parents will seek a more regular hand over as they like to interact with their children and feel periods of absence will impede on their relationship with their child. The question that parties need to consider is what worked for us prior to separation and can that work following separation.
If the child lives with one parent and has contact with the other then the most common routine is every other weekend and one overnight each week. This regime will be in place during the school term and then during the holidays the child will share their time equally.
How is custody decided England and Wales?
We deal with the laws of England and Wales not the UK. Scotland and Ireland have their own laws and we do not stray into advising in relation to the law of another jurisdiction. The law that will apply in this jurisdiction is what was the child’s provision for care prior to the parents separating and is that regime continuing in the child’s best interest. If not then the court will need to consider the statutory checklist to determine what will benefit the child.
How does child custody work when you separate?
First of all, it is important to state that while people often talk about child custody the term is no longer used in legal proceedings. The legal system instead refers to ‘contact’ and ‘residence’.
A residence order is a court order that decides which parent a child is to live with and who can take most of the decisions about a child’s care and upbringing.
A contact order requires a child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other
In the first instance the court will choose not to intervene and instead ask the parents to decide between them what would work best for them. If they cannot agree then the court will make an order to determine where a child lives and will either divide the child’s time equally between parents or give one residence and the other contact.
Contact or residence will not be granted where there is evidence that one or both of the parents are causing harm to the child, whether that be physical, emotional or sexual in nature.
There is an overriding presumption that an absent parent ought to have contact.
What do you do if your partner doesn’t let you have access to your child?
If you are not provided access to your child then you need to act immediately as this is likely to be detrimental to your existing relationship with your child.
If the relationship between parents is amicable and distance does not prevent meeting up easily, then in the first instance you might consider inviting the other parent to mediation.
It is really important to highlight that in order for mediation to work both parties must enter in to it with the right mind set. Mediation is not designed to give the answers but rather provide a framework to enable parties to discuss the issues and find a solution together. If one or both parties enter into mediation not understanding the problems or with the desire to work together to find a solution it will not work and will just delay the process.
If you are unable to engage in mediation or mediation is unsuccessful the next step would be to make an emergency application to the court.
There can sometimes be a delay in getting a hearing date from the court but once the hearing starts the court will usually authorise contact to be provided to the absent parent unless there is a good reason not to allow contact to proceed.
The courts view is that a couple of months of delay particularly with a young child can be damaging to an absent parents existing relationship and should be avoided.
How often am I allowed to see my child?
Every family is different and therefore there are many different contact regimes available to parents to ensure everyone can find a solution that works for them. The first question separating couples should ask themselves is what contact regime would suit their family.
Some parents choose to have a week on week off regime which may fit around their work pattern and therefore allows them to dedicate a lot of time to the children when then have them as they have sufficient time off.
If one parent is going to be the primary carer and have residence while the other has contact the usual regime granted by the court is every other weekend and one overnight each week.
In either scenario both will need to consider holiday time and holiday contact can range from 4 weeks a year to half of all the school holidays.
While flexibility is key to making these arrangements work it is important to remember that being too flexible can be confusing for children. Children like regime and constant changes from one house to another can be really unsettling.
How can I ensure the child residency/contact rights aren’t overridden?
When contact and residence of a child are enshrined in a court order, any breach will be contempt of court and can carry serious punishment. Often court orders will carry a penal notice to ensure that there is compliance.
If the court is becomes overtly concerned about a parent’s non-compliance with the order then the court can change residence. Therefore when there is non-compliance the matter should to be taken back to court as soon as possible.
Delay in taking action is damaging to your relationship with your child and creates problems when establishing new contact regimes.
Hi, I'm Emma and I'm MyBump2aby's family law, protection and financial editor. I'm passionate about better-informing parents on their choices when it comes to family law and family protection and financial matters.
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