WHEN marriages break down, the law is set up to minimise impact on any children involved. Antonia Mee (pictured above), of Burgess Mee Solicitors, explains more…
In the event of a break-up, who decides which parent is awarded custody and the terms of any visitation rights?
The court wants parents to reach an agreement between themselves as to where the children live and how much time they spend with each parent. Even if the parties are unable to reach an agreement with the assistance of their solicitors or a mediator, the court still wants them to try to negotiate at court and the first two court hearings in proceedings are dedicated to this, being called the First Hearing Dispute Resolution Appointment (FHDRA) and the Dispute Resolution Appointment (DRA). If the case goes to a final hearing where there are major issues to be adjudicated upon by the court, the court will still want the parties to try to resolve the smaller issues which remain in dispute by negotiating outside the court in breaks from the proceedings.
How much of a say do my children have in where they wish to reside?
The children’s voices will be heard through a court social worker (a CAFCASS officer) or an independent social worker (a private social worker whom the parties pay). The children’s views will be taken into account by the court but will not be decisive until they are in their teens and mature enough to understand the implications of their decisions. It will vary in each case depending on the child in question.
What rights do extended family members have?
Extended family members do not have “rights” to have contact with the children. However, there is an option for these extended family members to make an application to court for permission to make an application for contact. When deciding on whether to grant permission to these family members to make an application for contact, the court will take into account the nature of the application, the applicant’s connection with the child and any risk there might be of the proposed application disrupting the child’s life to such an extent that he/she would be harmed by it and, where the child is being looked after by a local authority, the authority’s plans for the child’s future and the wishes and feelings of the child’s parents. If the extended family member obtains permission to make the application then the child’s welfare will be the court’s paramount consideration.
What practical considerations should parents or guardians be aware of?
The parents will need to agree on where the children will live, where they will go to school and any other important decisions in their lives post separation/divorce. If they cannot agree then there is the option to make a court application. If one parent wants to move the child’s school or their geographic location, then they would need to make an application to the court if they cannot agree and the court will make the decision based on what is in the best interests of the child. The costs of court proceedings are high and are often detrimental to the future parenting relationship so there is a requirement that both parties attempt mediation before entering into the court process, unless there has been domestic violence or for some other reason mediation is not appropriate.
Is legal advice necessary if the split is amicable?
It is not necessary to seek legal advice if the split is amicable and the parents agree on all practical matters for the children. It is sometimes helpful to make a parenting plan, which can be referred to in the event there are queries by either parent in the future as to what was agreed and parents can obtain these from the internet. The court will not make orders in relation to children unless there is a dispute between them. This is called the “no order” principle.