WHEN marriages break down, the law is set up to minimise impact on any children involved. Holly Mullen (pictured above), of Hawkins Family Law, explains more…
In the event of a break-up, who decides which parent is awarded custody and the terms of any visitation rights?
In the majority of cases, the parents are able to decide the care of the children between themselves. If they can not agree, an application will need to be made to the Court for a Child Arrangements Order (CAO). A Judge will then decide with whom the child lives, and who they spend time with. This order replaces the previous Residence and Contact Order which was more restrictive and created a perceived winner/loser scenario. When considering a CAO, a Judge should have regard to the Children Act 1989 section 1 which provides that the Court’s primary concern should be the welfare of the child. In order to make this decision, the Judge has several guiding factors to weigh up which include but are not limited to: the child’s wishes and feelings; their physical, educational and emotional needs; the likely effect on them of any change in their circumstances; their relevant circumstances such as age, sex and background; any harm suffered or likely to be suffered by them and the capability of the parents of meeting their needs.
This can be a difficult balancing exercise but usually the starting point is a 50-50 division of care.
How much of a say do my children have in where they wish to reside?
Children’s wishes and feelings are a factor in the Court’s decision when granting a CAO. They are highly influential, however, the paramount consideration remains the welfare of the child and a Court can go against a child’s wishes if it feels that this is in their best interests. The Court will look at the ascertainable wishes and feelings of the child in light of their age and level of understanding (Children Act 1989 section 1(3)(a). Where younger children are concerned, the Court may feel that spending time with both parents is highly important, as children have a right to know their roots. Simplifying this, if a child is not likely to suffer harm as a result of following their wishes and feelings, they will likely be followed.
What rights do extended family members have?
Family members who are not the direct biological mother or father of the child do not automatically have any ‘rights’ with regards to the children. In fact, ‘rights’ is a contentious phrase in modern family law and it is mostly now replaced with the label responsibilities. Parental responsibility (PR) is a legal term which provides a parent or other person with the responsibility to care for the child and the authority to make decisions with regards to the child, for example the power to consent to medical treatment. Grandparents, aunts and uncles can acquire this via a Child Arrangements Order or Special Guardianship order. Alternatively, these persons could also be afforded guardianship status with the consent of another person with PR. Without PR, unfortunately, there is little influence that a grandparent or other family member can have with regards to matters concerning the child.
What practical considerations should parents or guardians be aware of?
Separating parents should consider very carefully the effect on the child of disrupting the status quo. This is also one of the matters which would be of importance to a Court were they to consider a CAO. A separation of their parents or guardians is already a huge change in the child’s life and therefore it is desirable for them to remain in the same home, at the same school and in the same geographical area. If one parent or guardian is to move out of the family home, their new home should ideally be close enough for contact to be arranged easily, without too much travel for the child.
Is legal advice necessary if the split is amicable?
Legal advice is always recommended as, even in an amicable separation, issues may arise that the separating couple had not considered. Furthermore, any agreements reached in relation to matrimonial assets/financial matters can be documented into a legally binding order to prevent either party from reneging on that agreement. Legal advice can therefore help to protect each party and ensure that they receive a fair outcome. A relationship breakdown can be a hugely stressful time and obtaining advice in relation to the legal issues can help persons to focus and better cope with the consequences of the split.