WHEN marriages break down, the law is set up to minimise impact on any children involved. Gail Salway (pictured above), of Everys Solicitors, explains more…
In the event of a break-up, who decides which parent is awarded custody and the terms of any visitation rights?
When a relationship breaks down often the issue of who the child or children are to stay with becomes a contentious point. It need not. Parties that find themselves in this situation are now encouraged to attend Mediation. Initially you would attend with a Mediator who would offer you a Mediation Information Assessment Meeting (MIAM). If you and your former partner are willing to attend and wish to avoid contentious Court proceedings, then Mediation can be used to resolve the issue concerning where the children will live, how often they will see the other parent, how Holidays will work etc. A Mediator does not give legal advice just legal information. Ultimately, if you cannot resolve matters yourself, either through discussions, or through Mediation, the Court will make the final decisions. It is better for the parents to agree on arrangements rather than have an arrangement forced on them by the court.
How much of a say do my children have in where they wish to reside?
This would very much depend on the age of the children and their level of understanding. The Court will often appoint the Children and Family Conciliation Advice and Support Service (CAFCASS) to assist the Court in coming to final decisions. Their recommendations form part of the final documentation a Judge or Magistrates would consider. The CAFCASS Reporting Officer would meet with the children and both parents and explore the past, present and future with all. Dependent on the children’s age, their level of understanding and how they express their wishes, the children’s views would always be considered and dependent on the criteria mentioned, their wishes will have greater weight the older they are.
What rights do extended family members have?
Extended family members unfortunately do not have an automatic right to pursue a line of access or contact with children. The Court process itself is two stage and extended family members would have to apply to the Court firstly for permission to make an application for a Child Arrangements Order. However, before any such application is contemplated, family members should consider with the parent what they can offer the child, in terms of support, or even child care, and how that child responds to it.
Extended family members should not see a relationship breakdown as an automatic way for them to push for extended rights to a child that is no longer with their sibling, niece/nephew or son or daughter. The best course is for them to consider how they can assist the separation to become less contentious as, in general, if matters are less acrimonious extended family members will have the opportunity to see the children in the usual way and at family events. Again, there would be initial encouragement to go to Mediation if initial conversations do not prove fruitful and ultimately, if Mediation cannot work and/or one of the parents will not engage, then there is the option of a Court application, but as indicated it is a two stage process.
What practical considerations should parents or guardians be aware of?
When parents are separating (be they a married couple; cohabiting couple or same sex couple) the practical arrangements concerning the children can often become the “battleground”. Despite what is commonly believed the children concerned will be aware of this and your behaviour as the parent can often have an impact on the children. Arguments about who should be the parent with care; where the other parent will live and how often they should see the children are issues that the children should be protected from. The arrangements need to be focused on the needs of the child not the needs of the parent. As such, at time of separation, practical considerations need to be at the forefront of your mind. For example If the children are already in school and settled there and one parent is able to maintain that education placement this would be of benefit to the children.
Maintaining some stability for the children can be key to ensuring a more equitable resolution to the separation itself. As separating parents you should therefore think about all of the aspects of practical care for your children not just who they will live with and when they will spend time with the other parent but; how that will work, where they should go to school, the children’s own social lives such sports activities, clubs, changing Doctors etc and making sure that the Surgery know that both parents are able to have information about the child’s well-being; if there is to be a re-location how that will take effect and how it will impact on the children. Everything needs to be considered from home to school and future provision for college etc
Is legal advice necessary if the split is amicable?
Even where a split is amicable, whether it be as a co-habitee separation or a Divorce signalling the end of a marriage, legal advice is still necessary. The parties are inevitably going to have financial matters to resolve between them, whether this be by way of property ownership, division of other assets, pension matters and/or repayment of debts. Legal advice can help make the process run more smoothly, we can assist in terms of drawing up agreements and Orders that will be needed during the process and it is far easier to seek advice at the start of the process, rather than seeking advice when a problem has arisen. Legal advice sought early can often assist in avoiding complex problems arising later, particularly when Court documents need to be drafted. Going to a solicitor does not mean matters become contentious, just the the agreement reached by the parents needs to be formalised.
Gail Salway is an Associate with Everys Solicitors and Head of the Family Department. She is a specialist in family and children law and a member of the Law Society’s Family and Children Law Panels. Whilst Everys’ main offices are in Devon we do provide legal services for clients across the country and as far afield as Dubai. The Everys family team is made up of 3 lawyers – Gail, Emma Benyon-Tinker (Solicitor) and Kris Seed (Chartered Legal Executive) and a small support team. Gail can be contacted on 01395 264384.