Child Contact and Residence/Custody in Divorce Proceedings

Although this is English Law, much of this advice is relevant to all separating couples

Before we go into detail, I just want to tell you that I have myself been through a divorce, when I was about 27, with two young children to care for. So, as well as knowing the law from a lawyer's point of view, I do also understand from a personal perspective what it feels like, and the fears and anxieties that go with it.

This can be a fraught question and people sometimes get worried that their children will be taken away from them.

The Courts normally take the view that both parents should see the children and that children have a right to see both parents. Indeed the current thinking (it hasn't always been like that) is to consider the children's rights, not the parents' rights.

All proceedings and disputes in England and Wales relating to children are governed in law by The Children Act. In divorce proceedings where there are children, the Court always considers whether the arrangements being made for the children are the best possible. If not, the Court will intervene.

Until my retirement I was a solicitor specializing in Divorce and Family Law. Please note that I am no longer a solicitor, and this article is merely for your guidance, and is not intended to replace appropriate legal advice.

Before finalising the Divorce by granting the Decree Absolute, the court is obliged by law to consider whether the arrangements made for the child or children are the best which can be made in the circumstances. This is not just a "rubber stamp" procedure, and the Court will carefully consider the details set out in the document called Statement Arrangement Children, which must accompany the Divorce Petition .

The relevant law is contained in The Children Act, and there is a set list of welfare considerations which the court must take into account in all cases, not just the contested cases.

What the Court Takes into Account in Children Act Proceedings

This list is laid down by law and the Court is obliged to follow it and to consider every single item set out below:

WELFARE CHECK LIST IN CHILDREN ACT PROCEEDINGS

The Court 'shall have regard in particular to:

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his/her physical, emotional and education needs;

(c) the likely effect on the child of any change in his/her circumstances'

(d) her/his age, sex, background and any characteristics of hers/his which the Court consider relevant;

(e) any harm which she/he has suffered or is at risk of suffering;

(f) how capable each of his/her parents, and any other person in relation to whom the Court considers the question to be relevant, is of meeting his/her needs;

(g) The range of powers available to the Court under this Act in the proceedings in question'

The Welfare of the Child is Paramount in Court Proceedings

The outcome will depend on your particular circumstances and the maturity of the child or children involved.

So older children's wishes will be given greater weight than, say, a five-year-old, but if there is violence or some other behaviour issue in the home, the Court might think it is appropriate to over-ride a child's wishes.

In every case relating to children the Court must consider the paramount welfare of the children.

Try to Reach Agreement With Your Spouse

Decide what is best for your children, and what is most likely to keep them happy.

Most children love both parents and are devastated when one of them leaves the family home and even feel that they are in some way to blame. It is crucial to reassure them that they are not to blame for the break-up and that, whatever the parents' feelings are for each other, both parents still love their children. Try to keep your disagreements away from the children.

It is best to inform their school what is happening, as children usually exhibit some kind of emotional behaviour at school, ranging from inattention to sadness, withdrawal, or disruptive behaviour, and if their teachers know what is going on, they will make allowances for this and give them special consideration. They will also need to know where to send school reports and letters,whether they should send them to each parent, and who is permitted to take the children from school.

You will need to decide which parent they will live with, and how much time they will spend with the other parent, including time spent overnight. You do not necessarily need to get a court order for this, but when the divorce petition is lodged at court, a form called Statement Arrangements for Children must accompany it, and the court will want to know whether the arrangements stated in that form are agreed or disputed and whether they are reasonable in the circumstances.

Try Mediation

You will need to make an Application to the Court under the Children Act for a preliminary hearing. After considering what each parent has to say, the Court will then consider what the next steps should be and make an appropriate temporary order (called an Interim Order).

They will probably suggest that you both attend mediation to see whether that will help to resolve the disagreement.

They will make an order about where the children should live and how often they will see the non-resident parent, until such time as there is a further hearing.

They might ask for a report from a Children and Family Court Advisory and Support Service (CAFCASS) officer, but as such a report can take about 18 weeks, as there is a shortage of officers, they often don't request a report at this stage, but wait to see how mediation goes.

A Court Order may cover a range of things, from residence and contact to holidays, religion and schooling.There may be an order prohibiting things such as coming into contact with a specific person or taking a child out of the country. The parents will be encouraged to agree to the terms of the Court Order, and if they do, it will be called a Consent Order.

This order will be expected to last until a Final Order is made by the Court. Sometimes there won't be a further or final order, if the consent order is working, or the parents agree to resolve things between themselves without going back to court again.

Sometimes there needs to be a further Interim hearing and order, and sometimes there needs to be a full hearing, where all the evidence is considered in greater detail.

Do you think children should see both parents as often as possible, or that they settle down better if they don't see the other parent? Do the children come home sad, upset, moody, disruptive or downright rude? Have you experienced "brainwashing" or parental alienation?

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