WHEN marriages break down, the law is set up to minimise impact on any children involved. Imran Khodabocus (pictured above) and Donna Hart, of The Family Law Co, explain more…
Donna Hart
In the event of a break-up, who decides which parent is awarded custody and the terms of any visitation rights
Donna: The courts no longer have terms such as ‘custody’ and ‘visitation’, but now refer to ‘Child Arrangements Orders’. In short, if both parents agree between themselves arrangements for the children, then lawyers and the court do not need to become involved.
However, if the parents cannot agree arrangements for the children it is open to the parties to explore other alternatives such as mediation. If the parents are still unable to reach an agreement regarding arrangements after attempts at negotiations and mediation, then ultimately the court will make that decision.
How much of a say do my children have in where they wish to reside?
Donna: If the parties choose to mediate they may wish to consider family mediation. This is when the child can take part in the mediation in a neutral setting so that the parents can take into account their wishes and feelings. Often children will be seen alone, and the mediator will feed back the child’s opinion to the parents.
If the matter does proceed to court, one of the factors the court will consider will be the child’s wishes. To what extent the children’s views are considered will depend upon their age, understanding and maturity.
What rights do extended family members have?
Imran: Generally such family members do not have an automatic right to spend time with your children. If they are not being allowed contact, they may have to consider making an application to court. Don’t forget, before they can apply to court, there is now the pre- requisite that they will have attempted mediation with the person with whom your children live in an attempt to reach an agreement. There are some limited exceptions to this requirement.
If mediation doesn’t work out, then they normally need to apply to a court for permission. This is known as ‘leave’. There are some family members who do not need ‘leave’, for example if the child has lived with them for a certain length of time.
When looking at ‘leave’, a court will consider the nature of what they are applying for and their connection with the child. Only if they are granted ‘leave’ will a court go on and consider if it is in the child’s best interests to, for example, spend time with extended family members. It is important to remember that a court will look individually at every case. Therefore, it is vital to get expert legal advice.
What practical considerations should parents or guardians be aware of?
Imran: When weighing up these things, a tip: try switching the focus to your child. For example, ask yourself where is best for your child to live, or go to school.
Many different factors come in to play such as; what are the working arrangements of the parents; do they have older siblings and what school do they go to; do your children suffer from any special needs that need to be catered for somewhere specific; what extended family members are there and would your child benefit from seeing them? Of course, there is also the issue of cost. How much is it going to cost to live in a certain area and would your child possibly end up losing out on fun activities because living costs have become more expensive?
The way to deal with these considerations is to ask yourself and the other parent/carer – is what is proposed going to benefit my child?
Is legal advice necessary if the split is amicable?
Donna: We recommend that you seek some level of independent legal advice. Some companies, like The Family Law Company, offer a free half hour consultation.
Far too many people do not realise that if they divorce without resolving their finances, then their financial claims remain open, meaning that the former spouse could make a claim upon their finances in years to come. It is therefore always worth seeking advice early on to ascertain what your rights are and to ascertain whether there is anything that you may need to do that you have not previously considered.