Arrangements for Children

Child custody is a term used to describe the legal arrangement between a parent/guardian and a child. It consists of both legal custody (the right to make decisions about a child) and physical custody (the right to house, provide and care for a child).

Married parents usually share custody of any children they have; however, custody issues can arise during events such as divorce and separation, adoption, parental death or when a single or both parents are considered ‘unfit’ for parental responsibility.

In England & Wales law, the term ‘custody’ is considered outdated and therefore no longer used, and the both courts and our child custody solicitors will refer to Child Arrangement Orders or ‘parental responsibility’ when describing the care relationship between a parent/guardian and child.

No parent has automatic precedence when legally binding decisions are being made on their child’s care.

Despite the widely held belief that mothers get preferential treatment in relation to child custody over fathers, the courts understand that this arrangement does not reflect modern families, and that both parents have equally important roles when it comes to raising children.

Family courts now operate to ensure that both parents – including same-sex couples – share the raising of a child after separation.

A Child Arrangement Order is a court-issued legal decision that decides:

• Where a child lives
• When a child spends time with each parent
• Other types of contact the child will have and when each will take place (e.g. phone calls, video chats, contact centre meetings)

No – only if you and your former partner can’t reach an agreement in relation to your children, or if there are circumstances involved where you have concerns about your child’s safety (e.g., If the other parent has been abusive or have been/are involved with drugs or alcohol). Otherwise, the courts prefer that parents reach an agreement between themselves regarding their children and will only intervene if this can’t be done.

We do recommend however that you and your partner have some form of written agreement that confirms your custody arrangement, such as a parenting plan.

We understand that there may be tension and difficulty following a separation, so if you are finding it hard to communicate with your ex-partner, we recommend seeking an impartial third-party mediator.

For heterosexual parents, your rights will be the same as any married couple.

However, in unmarried same-sex partnerships, the legal situation can be more complicated. Although there have been several changes to the law in recent years, child arrangements after separation will rely on how the child was conceived or how they came into the family.

If you are in a same sex relationship and worried about your rights in relation to your children, then we advise getting in touch with one of our family law specialists before acting.

In instances where you do not wish to see your ex-partner for a serious reason – such as if you suffered domestic violence during the relationship or emotional abuse – it may be possible for you to go through the process without having to see them. During this period, you can then present your case for why they may pose a danger to your children and therefore should not see them.

Our child custody solicitors have a sensitive yet pragmatic approach to child custody cases where there has been abuse. Upon instructing one of our solicitors, we will inform you of your options and whether you are likely to have to see or speak to your former partner.

If you are anxious about having to see your partner during court or mediation, then our solicitors will be there for you to offer support and ensure that you and your children’s rights are upheld and protected.

If you and your partner can agree on child custody arrangements without contention, then court intervention will not be necessary. If you cannot agree, then there is also the option of mediation that can often help you and your ex-partner overcome disagreements and work in a collaborative way to find a solution that suits both of you and your children.

However, if you and your ex-partner can still not come to an agreement, or there are serious issues attached to your situation (such as domestic violence, abuse or an ‘unfit parent’ claim) then family court-issued Child Arrangement Order may be needed.

We understand that court can be stressful for individuals with children, especially when abuse occurred in the relationship. Therefore, should your case go before a court, our solicitors will be there to offer support and ensure you and your children’s interests are protected.

A Prohibited Steps Order can be applied for when one parent wants to prevent the other from taking a particular action related to parental responsibility. Some examples of when this is used include:

• Preventing a child’s medical treatment
• Preventing the child from leaving the jurisdiction of England & Wales to live abroad
• Preventing the child from being associated with someone with issues that can affect their wellbeing (e.g., a new partner of the parent who is involved in drugs)

If you and your partner cannot reach an agreement about your children amicably, then the next step is to attend a mediation information and assessment meeting (MIAM), as the courts usually require that you attempt mediation with your ex-partner prior to applying for custody arrangements.

However, you do not need to attend a MIAM if:

• There was domestic abuse in your relationship
• You are applying for a consent order.

If childcare arrangements cannot be agreed on by you and your ex-partner, then the decision will be passed on to the courts.

When deciding on a Child Arrangement Order, courts will follow the factors listed in the welfare checklist in Section 2.1 of the Children Act:

• The parents’ ability to meet the child’s needs
• Any risk of harm to the child
• The child’s age, sex and background
• The impact any arrangement change may have on the child
• The physical, mental and educational needs of the child
• The child’s expressed wishes and feelings (this does not always influence the outcome, but will be a considered factor in the final decision)

The courts prioritise the wellbeing of the child when deciding on parental responsibility arrangements, and will also consider factors such as children having regular contact with both parents and with extended family (e.g. grandparents).

The child’s parent or anyone who has parental responsibility over the child can apply for a Child Arrangement Order. Other people (such as grandparents) can also apply, however they must get permission from the courts prior to applying for an order.

Parenting plans are not instantly binding, so if you feel that a legally binding agreement is needed then you will need to obtain a Child Arrangement Order from the court. It is highly recommended that you seek legal advice beforehand, as our qualified child custody solicitors can draft up the necessary documents for you, proposing an arrangement that you agree on and one that is more likely to be accepted by the courts.

Child Arrangement Orders can be challenged and altered, however it depends on the circumstances of the arrangement and why you are challenging it.

Some Child Arrangement Orders include a clause that allows you to change the framework of the order, if both you and your ex-partner agree to it. Otherwise, for a completely new Child Arrangement Order you will have to get the courts involved.

Every child custody case is different, so before you decide to challenge an existing Child Arrangement Order you should get professional legal advice to help assess your situation and devise the best course of action.

Sole custody is when one parent is legally granted both physical and legal custody of a child. However, sole custody can be difficult to attain and is dependable on a variety of factors.

The courts will look to promote joint custody wherever possible, unless you are able to prove that sole custody would be a better outcome for the child, which is why in these circumstances you should seek early legal advice.

Sole custody can sometimes be awarded if you are able to prove or argue the following:

• The other parent is unable to raise or supervise the child
• The other parent has previously been neglectful, abusive or has abandoned the child
• The other parent has working arrangements or other lifestyle factors that would make adequate raising of the child not possible. This is provided that your own work arrangements are better suited for full custody.
• The other parent has problems with drugs or alcohol, unresolved mental health issues or has been emotionally or/and physically abusive

A Specific Issue Order is a court-issued intervention that can be applied for when there is a disagreement related to parental responsibility. Some examples of when you can apply for a Specific Issue Order include disagreements involving:

• Your child’s education I.e., which schools they attend
• Your child’s medical treatment
• The religion that your child is raised in
• When a parent wants to take their child to live abroad

If you want to take a child to live abroad with you, it is vital you seek legal advice, as taking a child out of the UK without the right consent or Court Order is a criminal offence (see ‘What is classed as child abduction?’)

Child abduction is the unauthorised removal or retention of a child from their parent or guardian. It is not a crime that can only be committed by strangers – in fact, the legal definition of abduction can also be applied to parents, other family members, neighbours, friends and acquaintances.

The Child Abduction Act (1984) makes it a criminal offence for anyone (including people who are connected to the child, such as parents or grandparents) to take a child out of England & Wales without their parent’s or guardian’s consent. This also applies to holidays or temporary living abroad, as parental permission is required before this can go ahead.

If you are thinking of taking your child to live abroad, then it is vital that you seek legal advice first to prevent criminal prosecution. Get in touch with our child custody solicitors today on 01582 765111 or contact us online and we will get back to you as soon as possible.