We are seeing more and more couples having children outside of marriage as the cost of living rises and they are forced to choose between a house and a wedding. This can make things more complicated if you separate, as unmarried couples do not have the same legal rights as married couples.
Child custody arrangements
If you and your partner can agree on child custody arrangements when you separate the process can be straightforward. You don’t need any official paperwork but you may choose to make your arrangements legally binding by using a ‘Consent Order’. We strongly advise you get a Consent Order; otherwise it is much easier for your partner to change the arrangements without your consent. You should speak to a specialist solicitor to help you with your Consent Order.
It is much more common for separating couples to not agree on child custody arrangements. If this is the case, things can become much more complicated. That’s because of the rights surrounding unmarried couples.
Parental responsibility is the legal rights, duties, powers, responsibilities and authority parents have for their child. Mothers automatically have parental responsibility but fathers don’t unless they were married to the mother, or are named on the birth certificate.
This means that unmarried fathers, not on the birth certificate, do not have Parental Responsibility and therefore have no legal right in child custody arrangements.
Fathers without Parental Responsibility can gain Parental Responsibility by registering the birth of your child with the mother, making a legally binding Parental Responsibility Agreement with the mother or obtaining a Parental Responsibility Order. You will need to speak to a specialist solicitor to obtain a Parental Reasonability Agreement or Order.
Making child custody arrangements if you can’t agree
If you and your partner can’t agree on child custody arrangements then you will be asked to try mediation. If you can come to an agreement through mediation the process is similar to the process mentioned above. You will be able to make your arrangements legally binding using a Consent Order.
If mediation does not work and you still can’t agree, then a court will have to decide for you. When making its decision the court will prioritise the child’s welfare. The court will consider the following key factors when coming to a decision:
- The child’s wishes and feelings. These will be given more consideration the older the child is.
- The child’s physical, emotional and educational needs.
- The likely effect of a change of circumstances on your child.
- The child’s age, sex and background including cultural, religious or disability needs.
- If the child has suffered harm or is at risk of suffering harm.
- The parents’ capabilities with regard to the child’s needs.
- The range of powers available to the court.
We always advise that you try to come to an agreement outside of court. This is because both parents will have some say in the arrangements and they will therefore be more likely to succeed. Arrangements that are enforced are more likely to be challenged if a parent feels the decision is unjust.
If you would like to obtain Parental Responsibility or have any questions about child 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.