WHEN marriages break down, the law is set up to minimise impact on any children involved. Laura Clay-Harris (pictured above), Sophie Key, Joanne Wilbraham and Justine Flack, of Howes Percival Solicitors, explain more…
In the event of a break-up, who decides which parent is awarded custody and the terms of any visitation rights?
Laura: Ideally the parents should decide the arrangements for the children upon separation including who they live with and the time that they will spend with the other parent. If they find it difficult to speak directly or there are areas they cannot agree on, they should consider mediation or Collaborative Law which will allow them to manage the situation between them but with the assistance of their solicitor.
A solicitor can be instructed who can give guidance and can enter into communication with the other parent or their solicitor. Correspondence between solicitors can resolve matters. Ultimately if agreement cannot be reached between the parents an application will have to be made to court and if arrangements are not settled by agreement then ultimately a judge will make a decision having heard evidence from both parents.
How much of a say do my children have in where they wish to reside?
Sophie: As children get older they will express views about arrangements that affect them and those views may be taken into account. Greater weight is given to the child’s view the older a child is but each child is different and some are more mature in their approach than others of the same age. It very much depends upon the level of understanding that a child has and how able they are to see the bigger picture.
It is not however expected that a child should decide and effectively make a choice between parents. This places them in a difficult position and causes anxiety. Children do not always fully appreciate what is in their best interests. It can also be the case that children are subject to pressures to reach a certain view.
What rights do extended family members have?
Joanne: Unless children are living with extended family members then they have no automatic right to apply to the court for orders in relation to children. Whilst the court’s permission has to be given for an application to be brought, that is likely to be granted unless there is absolutely no prospect of success in the application. This is unusual. Once permission to apply has been granted contact will be ordered if it is considered to be in the child’s best interest.
There are many benefits for children in maintaining links with their extended family. Ideally contact should be promoted by the relevant parent. That is not always possible and so family members need separate orders if the parent with care will not support the relationship. Trying to maintain a good relationship with the parent with care is often beneficial and allows arrangements to be agreed without the need for court intervention.
What practical considerations should parents or guardians be aware of?
Justine: The child should always be central to arrangements which should always be in the child’s best interest. It is important to maintain stability for children when their parents’ relationship comes to an end. Key considerations are as follows:
- Keep arrangements simple where possible so that everyone understands what is happening, including the children.
- Try and keep travel time to a minimum.
- Be clear who will collect and return children, the timings and consider whether handovers might take place at a mid-point so that travel arrangements are shared.
- Show courtesy to the other parent; if you are running late telephone them so that they know. The parent should take responsibility for this rather than the child.
- Housing needs to be suitable whether that is for living arrangements or contact so staying contact is unlikely to be viable for children if the parent lives in a bedsit. In those circumstances consider whether staying contact could take place at the house of a relative or friend where there may be better sleeping arrangements.
- Children should go to school close to where they live so they are not affected by travel and it also allows them to enjoy social activities with school friends. Both parents should agree the school which the child attends.
- Whilst a parent may want to take a child to school on a Monday morning this is not always practical when there would be a long journey through rush hour traffic which could result in the child being late for school. This is not good for the child and will lead to arguments with the other parent.
- Where parents live some distance apart it may be better for there to be greater periods of contact during holiday times rather than term time so that the contact is of a better quality. It really is a case of quality over quantity.
- Discuss planned holidays with the other parent before booking and certainly before telling the children about plans. Be very clear upon dates and travel arrangements and provide copies of bookings and details of accommodation so that the other parent knows where the children will be staying and what the holiday arrangements are.
- Communication is key. Also try and treat the other person with courtesy. Accept some flexibility so the children are able to enjoy family activities with both parents and their extended family.
Is legal advice necessary if the split is amicable?
Justine: Not necessarily. If parents are able to resolve issues relating to their children between them and reach agreement neither solicitors nor courts need to become involved.