A recent YouGov survey brought the issue of shared care and child custody issues back into the spotlight. Family lawyer Safeena Tufail looks at the issues for parents deciding how to share care for their children, after separation or divorce, and what actions the court will take when there is no parental agreement.
For many years, campaigners have been calling for there to be an automatic presumption in law for shared care of children following separation or divorce. The premise is that every child has the right to a meaningful relationship with both parents (excluding cases where there is a proven risk to the child). At present, the law does not make that clear. The YouGov survey, reported in the Law Society Gazette asked around 2000 parents whether they agreed that parents should spend a roughly equal amount of time with their parents after a divorce or separation; the vast majority agreed.
Shared care / joint residency / shared custody
Shared care for your child(ren) is also referred to as joint or shared custody or joint or shared residency. It basically refers to an agreement where a child lives with both parents after a separation or divorce. Assuming you both have Parental Responsibility, then it is up to you to negotiate the living arrangements on the basis of what is in the best interests of the child.
In general, the preferred option is for joint / shared residency. This allows the child to spend an equal amount of time with each parent. It also allows both parents to participate in any decision-making which may affect the child. The 50/50 split does not have to be exact, but should be agreed between the parents.
Can’t agree – who then decides?
If you are unable to agree to shared custody, or to decide amicably on what living arrangements are best for your child, the courts will decide on your behalf. Most parents wish to avoid going to court but equally most parents will find the separation or divorce a stressful and often acrimonious time. Whilst you may be very unhappy about your partner as a husband or wife, try and separate that from them as a parent.
Wells Burcombe’s team of family solicitors will make every effort to help you find an amicable solution without involving the courts. This includes negotiations between parents and even mediation. However, in cases where this proves not to be possible, we can help you through the process of formally applying to the court where custody and contact will be decided. Email Safeena Tufail today or call our office in West Drayton on 01895 449288 or St Albans on 01727 840900.
Child Arrangement Orders
In cases where no agreement has been reached, you apply to the court for a Child Arrangement Order – these were formerly Child Contact and Residence Orders. The Child Arrangement Order sets out:
- Arrangements for which parent the child should live with, or a non-parent
- When and how much time the child will spend with a parent (or non-parent) they don’t live with
- Changing a child’s name or school, or any religious or medical treatment issues
In general, the court will take the stance that it is better for a child to have each parent involved in their lives.
Specific Issue Orders
We often see these orders because a specific issue has arisen such as a parent wishing to move to a new location, or a parent wanting to take their child abroad on an extended holiday.
You can apply for a Specific Issue Order to resolve a disagreement any matter relating to Parental Responsibility. For example:
- How religion should be included in the child’s upbringing and education
- Whether the parent with care can take the child to live abroad
Prohibited Steps Order
A Prohibited Steps Order can ask the Court to prevent one parent taking a particular action related to Parental Responsibility. For example:
- Preventing the child associating with someone with adverse influence
- Stopping the child from being permanently removed from the UK
- Preventing medical treatment
Court decision – best interest of the child
In making decisions, the court will always take the child’s welfare as their paramount consideration, in accordance with the Children’s Act 1989. The court will consider:
The child’s wishes and feelings (taking into consideration their age and understanding)
- Their physical, emotional and educational needs
- Any effect the change of circumstances will have on the child
- The child’s age, sex and background including cultural, religious or disability needs
- Whether the child has suffered harm or is at risk of suffering
- How each parent is capable of meeting the child’s needs
If you are struggling with shared care and child custody issues, please contact one of our Family Law experts in West Drayton on 01895 449288 or St Albans on 01727 840900 or fill in our enquiry form and one of our lawyers will get in touch.