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Can I get joint custody if we are not married?

Can I get joint custody if we are not married?

More often than ever we are being asked by fathers "can I get joint custody if we are not married?" For the first time ever, more unmarried couples with children are breaking up than married couples with children. Married fathers feel more confident in achieving joint custody than unmarried fathers. However, the truth is unmarried fathers can also get joint custody under the right circumstances.

What is joint custody?

It is a common assumption that joint custody means a 50/50 split between the two parents. However, joint residence, as it's officially known, is an agreement that your children live with both parents. The time spent with each parent can vary from; weekdays with one and weekends with another, an equal share or even living with one parent during term-time and another in the holidays. It is entirely based on your circumstances and can be split however you want it to be.

How do I get joint custody?

You do not need to involve the court to get joint custody or your children. In fact, it is always advisable to try to come to an agreement outside of court to avoid any unnecessary stress that may make the situation worse.

In the first instance you should talk to your ex and try to come to an amicable resolution. Once you have spoken we advise you use a solicitor to outline your requests in an official letter. If your ex agrees to your requests, you don't need any official paperwork to carry out your agreement. However, this makes it much easier for your ex to change their mind or your agreement. Therefore, we strongly advise you get a Consent Order that makes your agreement legally binding. Your solicitor can help you with this.

If your ex still refuses to let you have joint custody things become more complicated. That's because not all unmarried fathers have Parental Responsibility.

What is Parental Responsibility?

Parental Responsibility is a legal term referring to the rights, duties, powers and responsibilities parents have for their children. Only mothers automatically have Parental Responsibility. Fathers also get Parental Responsibility if they are married to the mother.

Unmarried fathers automatically have Parental Responsibility, which means they might not have any legal rights in custody disputes.

Unmarried fathers gain Parental Responsibility if they are named on the birth certificate. Therefore, it is important to make sure you are named on the birth certificate. If you are not named, you can reregister the birth and add you name to the certificate. Alternatively, you can obtain a Parental Responsibility Agreement or Parental Responsibility Order through your solicitor.

How do I get joint custody if my ex refuses custody?

Once you are certain you have Parental Responsibility you can apply to the court for joint custody. The court will ask you to try mediation before a hearing is arranged. In mediation, you will be helped by an independent third-party to try to come to an agreement. If you come you an agreement in mediation you will be able to make your arrangements legally binding using a Consent Order.

If mediation doesn't work, then you will have to go to court. The court will decide custody arrangements for you. It is important to remember the court's main priority will be your child's welfare. It will consider the following when coming to a decision.

  • Your child's wishes and feelings. These will be given more consideration the older the child is.
  • Their physical, emotional and educational needs.
  • The likely effect of a change of circumstances on your child.
  • Their age, sex and background including cultural, religious or disability needs.
  • If your child has suffered harm or is at risk of suffering harm.
  • Your capability with regard to your child's needs.
  • The range of powers available to the court.

The court actively encourages a relationship with both parents, provided this does not put your child at risk of harm. However, if you live far away from your child's current school, friends and other family members, you may find you are granted less time with your child. This is because it would be unpractical for your child to travel long distances to and from school and other key aspects of their lives.

It is likely that you can achieve joint custody of your children depending on your circumstances. It is always advisable that you try and come to an agreement outside as these agreements are far more likely to succeed. This is because you can come to an agreement that suits both parents.

If you have any questions about joint custody or are being refused custody, please contact us in London (West Drayton) on 01895 449288 or in Hertfordshire (St Albans) on 01727 840900 or by email via our contact page.

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