WHEN marriages break down, the law is set up to minimise impact on any children involved. Tamsyn Windle (pictured above), of Howell Jones Solicitors, 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 it will be the parents themselves who decide with whom the children live and spend time (formerly referred to as custody/residence and access/contact).

The parents may simply agree between themselves arrangements for the children. Family Mediation services can often be of assistance in exploring and assisting the parents in deciding arrangements and such can be, but do not necessarily have to be, formalised by way of written agreement or Court Order.

There is no obligation to obtain a Court Order and in general the Court will not get involved unless application is made to it in the event of dispute or because the parents would like an Order by Consent.

There is a presumption that the children should spend time with both parents. It is not the right of either one parent or the other to make the arrangements or any important decisions. Insofar as possible these should still be taken together or in consultation with one another, notwithstanding the parents’ separation. Where the parents cannot agree, either can make application to the Court under the Children Act 1989 where any Order made will be on the basis of what is deemed to be in the best interests of the children.

How much of a say do my children have in where they wish to reside?
In the event of a dispute between the parents, the Court will take into account the wishes and feelings of the children. What weight is attached to their wishes and feelings in part depends on age but not usually solely so. If the Court has jurisdiction to make an Order (the Court will not generally make or extend an Order beyond a child’s 16th birthday) it will be made in consideration of all relevant factors. Age and understanding is one factor, others include the child’s needs and, again, what is in the child’s best interests.

What rights do extended family members have?
It is not considered that anyone, whether parents, grandparents or any family members have “rights” towards the children. After the parents separation it is often the case that the children continue to see other family members but where dispute arises, in certain circumstances, other family members may be able to make application to the Court including as to spending time with the children. The Court can make such Orders where consistent with the children’s needs or best interests.

What practical considerations should parents or guardians be aware of?
Practical considerations are likely to be highly relevant particularly where there are to be shared care arrangements. In addition to the above practicalities the importance of good communication between the parents should not be underestimated.

Housing and schooling are of course important in respect of meeting a child’s needs and therefore of key consideration.

Changing geographic locations can be a reality for many families and can hopefully be managed in accordance with what is in the children’s best interests. Should such arrangements not be agreed, application can be made to the Court. Any application to relocate the children will result in detailed examination of the particular facts and the decision will likely be heavily based on what best meets the welfare needs of the children including whether relocation denies or allows opportunity for the children to spend time with both parents.

Is legal advice necessary if the split is amicable?
Legal advice is likely to remain of value. Agreed arrangements may be reviewed and amended if appropriate in the context of that advice. There may also be circumstances in which it is desirable to formalise arrangements for the children, either by way of written agreement and/or Court Order.

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