How does Child Custody work when separating

MyBump2Baby Expert Podcast


how does child custody work when separating
  • How does Child Custody work when separating

At MyBump2Baby, we work with family law solicitors throughout the UK and today we have special guest Simon Walker asking commonly asked questions about “how child custody works when separating” Simon covers the following questions many parents have including Who will my child live with if we separate? How does child custody work when you separate? What do you do if your partner doesn’t let you have access to your child? How often am I allowed to see my child? How can I ensure the child custody rights aren’t overridden? 

You can read the article Simon Walker wrote for us here 

For more information visit Mogers Drewett’s website:


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[00:01:28] Hello and welcome to My Bump 2 Baby Expert podcast, where we bring experts from all over the UK to answer your questions on everything, pregnancy to preschool.

[00:01:50] Today, we are talking about how child custody works when separating, and we invite on one of our family lawyers, Simon Walker from Mogers Drewett. I hope you enjoy this episode.

[00:02:10] Hello everybody and welcome to My Bump 2 Baby Expert podcast. Today on the podcast, we are joined by Simon Walker, a family lawyer for Mogers Drewett. Hi Simon, how are you? 

[00:02:25] Simon: I’m very well, thank you. 

[00:02:27] Carla: Good, good, it’s a pleasure to have you on here today. I’m looking forward to speaking to you on this, on this particular subject, which is how does child custody work when separating, can you introduce yourself Simon? If you don’t mind. 

[00:02:41] Simon: Yeah of course. I’m a family lawyer with Mogers Drewett, as previously been said. Um, I have now been qualified for 17 years. Um, this is my second career, not my first. I love working in the, uh, in the area of family law, but my, my specialty is dealing with issues around children. So I concentrate very much on sorting out disputes between parents.

[00:03:11] Um, as to the future arrangements for their children, I also deal with surrogacy matters. Um, and I, and I deal with sometimes international child abduction. So it covers a multitude of, of different aspects. Um, the one thing that I don’t do is I don’t do care work, which is where the state become involved in the care of children.

[00:03:35] Carla: Excellent. Excellent. So today, Simon, what we’ve got you on for is we’re going to be talking about how child custody works when parents are separating, which is something that. I know a lot of parents struggle with and it can be a bit of a scary time, um, because it’s venturing into the unknown, isn’t it? 

[00:03:55] Simon: Definitely, I think most of my clients are full of fear in relation to their relationship with their child, but at the present at that time and going forward into the future, I think the first thing to get right. Is the terminology. Uh, people talk about custody and those, those terminologies are considered quite old fashioned now. We talk about contact and we talk about residence and, but even those terms have become quite emotive. And what the court is trying to do is change the language so that there is much more of a balance between both parents. So talks much more about shared care now. And it talks much more with the language of the child spends time with, so that neither parent is provided with an elevated platform. 

[00:04:49] Carla: Right. That that makes sense. Yeah. A lot of things have changed over the last few years. So if parents have made that decision to separate, um, a question on a lot of parents mind is who will my child live with if we separate? Now, what, what is your, your answer to that question? 

[00:05:07] Simon: The court takes the position that parents need to really work together and sort it out for themselves. It is their child and it is their responsibility. They, the court accepts that parents obviously get a little bit stuck in those discussions, but effectively the, the, the main principle of the children’s act is the no order principle. And the court has to consider that in the first instance. So, but in terms of where we, where the child will live with those parents need to actually sit down and think about what is in the best interest of the child, because that’s the primary concern of the court. If they’re unable to agree on it, um, then parents need to consider entering into mediation.

[00:06:03] You can’t make an application to the court unless you’ve explored mediation and mediation has then failed. Mediator will explain to the parties about the various options that are available to them and try and help them reach a compromise. The difficulty that parents have and mediators, have, is they can’t advise. So I always think if parents are going to go into mediation, they all should take legal advice first because to go into a room and try and talk and negotiate, it’s very difficult. If you don’t understand the parameters that you’re operating in. I also think parents need to understand that they have parental responsibility. That means that they have all rights, powers and duties over their children. And they share that with the other parent. And that is about negotiating and working out, but not what’s in their best interest. What’s in their child’s best interests. And I think most parents lose sight in that. And they really need to understand that the courts will not, not be too concerned about them as individuals. They will only really be concerned about the child. 

[00:07:17] Carla: That makes sense. That makes sense. The child of course comes first and all of that. So, so what would you do if I I’m sure you get a lot of this, um, Simon, but what would you do if a child’s partner doesn’t let them have access to their own child? I mean, is there anything that can be done with that?

[00:07:36] Simon: I think my main concern when dealing with whether contact has ceased, is speed and the speed of action. I think you have to understand that a child’s life as a child is very limited and your, your lack of involvement in that child creates a status quo for that child very quickly. So what you need to do is you need to, try and contact the other parent and try and establish contact as quickly as possible. Whilst doing that, I would also make the referral to mediation because as I previously said, you cannot access the court without having a document from a mediator saying that mediation has failed. If the other parent who’s got the child, won’t talk to you via email, won’t attend mediation. I would then issue the application before the court. The court has now set a presumption that every parent has to have contact with their child. If one parent is refusing contact, then they have to have good reasons to do so. That could be that the other parent is causing emotional, physical, sexual harm to that child, but they have to justify that.

[00:09:00] And there has to be an exploration by the court as to why that contact is being refused. Even in the most extreme cases where there has been bad behaviour by one parent, you, you can, you can limit the contact, but it is a very rare case where there are no contact will be granted. The court  feels it’s the child’s right to have a relationship with the other parent. And it will put in place, uh, provisions that will enable that to happen, provided it is safe for the child. So my going back to the, the crux of your question is if contact is stopped, act quickly, contact the other parent via email. So you’ve got written evidence of that and then make the referral to mediation. If in a short period of time, there is no contact. Make your application to the court.

[00:09:58]Carla:  Okay, that’s great. That’s, that’s very, um, detailed answer. So thank you so much for that. So you may have already kind of covered this question, but how often are parents allowed to see the child? I’m guessing is that between both parents to sort out, I mean, I don’t like that phrase allowed, but is that, is that for them to sort out between themselves basically as what’s convenient. 

[00:10:22] Simon: I think it is about what’s convenient and what works for them as a couple following separation, you know, people have commitments in relation to work and other, their new relationships, et cetera. But I think. In terms of that, there is a general principle that we who work in this area go with, and that is if you’ve got a small child, little and often is appropriate, the older the child becomes the longer periods of time. And maybe they’re less frequent. We have to think about the child again, and I I’m trying to place the child back into the centre of this discussion is what suits this child.

[00:11:03] Now, if you have a baby, the baby needs to bond with you as the absent parent and needs to build a relationship with you. If you, if you’re seeing that child once a week on a Saturday for three hours, you, your relationship doesn’t have that ability to develop. I would be suggesting to a parent of a very small child, but you need to have contact three or four times a week for maybe an hour at a time.

[00:11:33] If you’ve got a child who is six or seven, again, you need quite a lot of frequency, but the duration doesn’t need to be that massive. And then when you get to teenage children, we change again, they’re much more able to pick up those relationships again and spend longer periods of time and not have anxiety about being absent from the other parent, we are dealing with the grain person and they’re changing all the time. And as parents, we need to change what our expectations are about how our relationship works with them. 

[00:12:12] Carla: Yeah, that makes sense. So it’s like what, uh, what works two years ago is probably going to change as time goes on. 

[00:12:20] Simon: There is also a bunk standard sort of contact regime, which was, uh, that parents should have contact every other weekend or the absent parent should have contact every other weekend and one day during the week. And that was very much a sort of. Set of parameters that developed, um, back in the nineties, we are now living in a society where both parents work full time and those, those contact regimes do not fit in around for the child or for the parents and because parents have shared the care of their children as their children have grown up in the initial stages of their relationship. They, they then want to share the care afterwards. So we aren’t getting a much more shared care arrangements that are coming through. Uh, and that’s, that’s an interesting point in terms of how families have changed over the last 20 years. 

[00:13:19] Carla: Yes, definitely. I mean, with my husband, we co parent, it’s very much, I mean, we live together, but it’s very much equal. Um, so, you know, I, I think a lot of friends that have actually, split with partners as well. I’m sure a lot of those are in similar situations as well, where one parent has the child half the week and the other parent has the child half the week. And they’ve worked it like that. Um, in regards to paying for the child, if you are shared custody, then does that mean that each parent would then just cover their own time with that child? How would that work? Do you know? 

[00:13:57] Simon: All maintenance for children is now dealt with by way of the statute body, or the child maintenance service. And they have a website that you can go on to and you can work out the calculations about who needs to pay who the week is seven days. And quite often splitting time is quite problematic, uh, or splitting that week is problematic for parents. So you use this predominant, a child will predominantly be in one parents care over the other. And, uh, my suggestion is that if you are trying to look at where the maintenance applies to you, you should use the statutory website.

[00:14:37] And it will walk you through the various stages of what it looks at. I think to try and explain it, uh, over, over a podcast is a little bit more complex, but the government website is very easy to use. It gives very clear indication as to what maintenance needs or doesn’t need to be paid. If parents do use the child maintenance service, though, there is a charge for it. So whilst I would recommend you use it too, work out the calculation because statute applies to everyone. I would encourage parents to. Do their calculations, but make their deal outside of that remit.

[00:15:24] Excellent. No, that’s really, really good advice though. It just came to mind to them when I thought about how parents are nowadays. It’s um, yeah. That’s that’s great. So, so how can parents, um, finally ensure that the child custody rights aren’t overridden then.

[00:15:41] I think enforcement of children contact arrangements. I’m sorry. I have to keep on changing your language.

[00:15:51] Carla: Sorry.

[00:15:53] Simon: It’s fine. It’s it is something that we have to deal with quite a lot. But in terms of that, um, we look, the, the court has teeth and it will, it will, take this presumption that the absent parent needs to have contact. Now, if a parent continues to fail to provide contact. The court has a multitude of powers. It’s contempt of court. It can fine the parent, it can order the parent to do community service. Um, it, it can even imprison them, the parent. I think if these, if these situations become too extreme, then the child. Usually the parent who has the child starts chipping away at the child and starts altering their mind in terms of whether they like the other parent. And that’s called parental alienation. Parental alienation is a very, it’s a clinical diagnosable situation. Uh, and I think people who come and see me say, Oh, I’ve been alienated from my child. Um, and it’s not strictly true. They, you need to have someone who looks at it in the round as to whether that that has occurred.

[00:17:15] But in those extreme situations, I have been involved in cases where residence has been changed. So the child is removed from that parent that was having primary care and placed in the care of the other parent. So. Parents who are stopping contact and with, with no justification, need to think very carefully about the end result that that could bring.

[00:17:41] Carla: Excellent. That’s that’s really interesting. Um, Simon, can you tell us then a bit more about, um, finally what you do, where people can find you and the different things that you cover as well? 

[00:17:54] Simon: I class myself as a family lawyer, but, um, the definition of family in, in my short practice has, has changed dramatically. So I deal with mainly I deal with relationships, how those relationships interact with each other and how they take control of their finances and their children. And I fit in the legal framework around that, whether that’s people who are coming together for prenup agreements. Whether they’re cohabiting, they want cohabitation agreements.

[00:18:33] I deal with surrogacy. So people who are unable to have children and go abroad and have someone who carries a child for them, um, and the orders that they need when they come back. 

[00:18:46] Carla: Wow.

[00:18:46]Simon:  I deal with all manners of international child arrangements. Um, whether children have been snatched and taken to another child and then trying to get them back to the UK.

[00:18:59] And then I deal with the normal stuff of divorce and financial separation as well. So our remit is, is very wide. And I think it’s about relationships from the cradle to the grave basically, and how they fit together. So as a family lawyer, we, we, we do cover, a very wide area and families are not mum, dad, and two children. They are wife and wife, husband, and husband. And that also features there is, civil partnerships and how they how the law fits around them and how they work. And civil marriages ,it’s is very wide, but I think mainly the overall umbrella is interpersonal relationships. 

[00:19:49] Carla: Hmm, that makes sense. And, and whereabouts are you based then please? Simon for our audience. 

[00:19:56] Simon: So I’m based in both the Sherborne and the Bath office. I split my time between both because I live in Bath. Uh, but I, I, I suppose my area covers North Dorset, West Wiltshire  and the whole of Somerset. 

[00:20:13] Carla: Excellent. Excellent. And Simon, thank you so much for coming on. It’s been really interesting finding out all about, well, what parents do when separating, so thank you so much. 

[00:20:23] Simon: No, thank you for having me. 

[00:20:24] Carla: Thank you.

[00:20:28] Thank you for listening to My Bump 2 Babies Expert podcast. If you would like to find help and support from experts in your local area. Head over to And you will also be able to find local pregnancy to preschool groups, classes, businesses, and services.

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