WHEN marriages break down, the law is set up to minimise impact on any children involved. Andrew Woo (pictured above), of Brewer Harding & Rowe Solicitors, explains more…
In the event of a break-up, who decides which parent is awarded custody and the terms of any visitation rights?
Following the breakdown of a relationship deciding who a child shall live with can be emotional and complicated. This is still often referred to as child custody or residence though the court now refers to this as part of ‘child arrangements’ i.e. who the child ‘lives with’ and ‘spends time with’.
There is nothing contained within the law that says that a child should live specifically with mum or with dad. The welfare of the child and the child’s best interests is what the court will consider first and foremost when determining any decision regarding child arrangements. There is no right or wrong answer as each case is different.
Both parents should try to agree together on where they will live. A court can be asked to decide, but this can be a painful process and the courts will only make a legal order if it feels there is a need to and all other options have been exhausted.
How much of a say do my children have in where they wish to reside?
I am often asked “At what age can my child choose who to live with?”. Legally there is actually no set age that determines when a child is allowed to choose with whom he or she wants to live with. The court will wish to hear the views of a child, but how much weight these have depends upon their age and understanding. Wishes and feelings are therefore taken into consideration but this does not mean that it is up to the child where he or she gets to live.
Some parents understandably think it is all-important to allow their child to make this decision for themselves, but this can in reality be unfair, as it puts children, whatever their age, in a difficult position of choosing between their parents and in any case often results in them telling each parent something different and what they think they want to hear. The courts therefore encourage parents to agree matters where possible and make joint decisions for their children in order to protect them from feeling responsible for what happens.
What rights do extended family members have?
In England and Wales family members who are not the parents do not have automatic rights and such relatives do not have the same standing as a natural parent. If they wish to pursue what used to be known as access or contact through the courts they would first need to apply for permission or ‘leave’ and if granted they would then be able to make a full application to the court. Whilst the court decides matters on a case by case basis, relatives such as grandparents, aunts and uncles with established relationships are often seen as an integral part of family life and important to the welfare of children.
What practical considerations should parents or guardians be aware of?
Most parents are able to sort out the practical living considerations for their children. Sometimes however, there are proposals that a child is to move away and these cases can be very emotional. Every relocation case is different and needs legal support tailored to your individual circumstances. If one parent is relocating out of the area, but is to remain in England or Wales (sometimes known as an ‘internal relocation’) and the other parent who is involved in the child’s everyday life disagrees with the move, they could take action. The best interests of the child and their welfare will be the paramount factor considered in all cases.
Is legal advice necessary if the split is amicable?
Both parents should ideally try to work towards an amicable agreement which is in the best interests of the child and will minimise disruption to the child’s life. However, if you and your former partner have difficulty coming to an overall agreement, there are various approaches available to you depending on your situation.
First, you could see a mediator. Mediators provide a confidential and impartial setting in which to help you communicate and discuss all issues. Although Mediation does not automatically result in a legally-binding arrangement, it helps to facilitate communication, which is sometimes the main difficulty and root of many problems between separated parents.
You could approach a solicitor for legal advice and instruct them to negotiate on your behalf without necessarily starting court proceedings. Often there are important legal issues which are relevant to your case. Some solicitors offer a free initial legal consultation which will help you weigh up your options. A good specialist family law solicitor will apply and abide by the Family law Protocol, which requires the least confrontational approach to be used and all efforts to be made to encourage agreement wherever possible.
For further legal advice regarding family law or child arrangements please contact your local Brewer Harding & Rowe office and make an appointment with one of their family law specialists.