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Child Contact and Residence/Custody in Divorce Proceedings

Updated on May 28, 2018
Gloriousconfusion profile image

I practised as a solicitor in London, mainly in all areas of family law and my studies gave me an interest in psychology, and human rights

What Happens to the Children When Their Parents get Divorced?

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.

What Will Become of me?

Image: Cherry Ripe by Millais
Image: Cherry Ripe by Millais

Child Contact and Residence or Custody - Where will The Children Live?

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.

The Most Important Thing You Need To Remember:

When parents break up, children need

extra love and care - they suffer

feelings of anxiety, fear, anger, and uncertainty.

The best way to help them is by

putting them first

when you consider all the issues

Statement Arrangement for Children Accompanies Divorce Petition

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.

The Court will lean against making an order relating to children

They will encourage the parents to reach agreement, possibly through mediation. The norm is that they will not make an order at all, but if an order is requested for a good reason, then they will make an order after considering the circumstances and all relevant factors

If the Parents Cannot Agree About Contact or Residence

If the parents cannot reach a satisfactory agreement and Contact or Residence is contested, the Court will consider all the circumstances, as set out in the Welfare Check List shown below, and after balancing the various factors, will make such order as it deems appropriate. This might be a temporary order or a permanent order.

Welfare Check List in Children Act Proceedings

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'

Each Children Act Case is Different

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.

First Steps in Divorce Proceedings if You Have 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.

If You Can't Agree about Child Residence and Contact

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.

Royal Court of Justice, Strand, London

Source

What Do you Think about Parents Sharing Child Responsibilities?

Source

Are Children Better Off With Just One Parent?

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?

Take the Poll Below:

Do You Think it is Important For Children to See Both Parents Regularly?

See results

Bring a Bit of Humour Into Your Divorce Situation

You can get this "Divorce" T-Shirt on Zazzle
You can get this "Divorce" T-Shirt on Zazzle | Source

You can leave your comments below and you may also ask me questions or suggest another web page you would like to see on a family topic

Comments - Are You or Anyone Close Thinking of Breaking Up? - Have you got children?

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    • profile image

      fati 

      4 years ago

      I agree that most important things that children need are love and stability. As a victim of sepated parents, I know that separated or divorced parents are the worst thing that could happen to a child. If a couple feel there is no other option to separation or divorce, every step they take towards this must be first in the child/ren's interest. Incidentally, i just wrote an article about this in my blog.

      Check it out at www.parentingandchildren.blogspot.com

    • Gloriousconfusion profile imageAUTHOR

      Diana Grant 

      4 years ago from United Kingdom

      @BLouw: The main things that children like and need are stability and love. You just have to do your best in the circumstances.

    • BLouw profile image

      Barbara Walton 

      4 years ago from France

      I love your 'I fought the law' sticker!! Very useful article about a very difficult subject. It must be heartbreaking for the children. Wonder if the nuclear family is such a great institution.

    • Lady Lorelei profile image

      Lorelei Cohen 

      5 years ago from Canada

      Divorce is a very emotional thing to go through and if there are children involved then it can be even more so. You have presented very useful information to help those out in divorce proceedings.

    • Bill Armstrong profile image

      Bill Armstrong 

      5 years ago from Valencia, California

      Love the lens, thanks for sharing

    • norma-holt profile image

      norma-holt 

      6 years ago

      Children are equally bonded to both parents and it is so hard when they split up. Another great lens and really appreciate the information. Hugs

    • mariaamoroso profile image

      irenemaria 

      7 years ago from Sweden

      This situation is so hard for all involved. I was thinking about what you say in this lens and many of the advices can be applied to when one parent die.

    • Gloriousconfusion profile imageAUTHOR

      Diana Grant 

      8 years ago from United Kingdom

      If your child is intelligent and articulate, then, even if she is only 10, the court can take her views into consideration. This does not mean that they will act on her views, merely that they will consider them when they go through the welfare checklist which I have outlined above. They can give as much or as little weight to her views as they deem appropriate, but the older she is, or the more sensible, the more likely they are to give greater weight to what she says. Nothing is cast in stone, and the situation may change later.

    • LisaAuch1 profile image

      Lisa Auch 

      8 years ago from Scotland

      Sometimes I think peoples paths cross for a reason...after you visiting my lens...I found this great, as just now continuing on from my story, my daughter now 10 does not want to see her dad, he has let her down many times, and she has see behaviour that frightens her, the childwlfare hearing decided that mediation was needed to try to re-build their relationship (I persoanlly still think that here Dad, should have contact? but only if he can behave himself, and put her first! and with some strict boundaries in place) my daughter now is adamant she wants nothing to do with him,, although the court has said she must see him, we have a great mediator who continues to work with us, however my daughter thinks no-one is listening to her? She attends mediation and tells her father straight why she does not want to see him (valid reasons...I have made her go to her dads, althoguh i have had suspicions all is not well, but I have had not proof, it has came out, through his ex-wife that my suspicions were correct, and I feel awful Making her go when she told me she did not want to! He also put pressure on her to "keep this a secret from mum"

      I think if it were to all die down, through the court etc putting deadlines etc. The more my daughter is resenting him for pushing it. He now can only see her on a certain day which impedes with one of her activities, and she is so upset about it, but he just thinks I am the devil re-incarnated, and it is all because of me? My lawyer is being tricky (she has not been well and it has been a difficult time for her, I have had her for 10 years, but I am in sympathy for her situation, however I don't think I am receiving very good advice, and actually think she just wants a quiet life) I just see my daughter who is intellegent articulate and very bright, becoming a changed wee girl because of this!

      Whew...glad to get that out

      I worked in childcare for 10 years, I have seen the effects of broken relationships on children, and I never wanted it for my child!

      SO what do you do, we have 2 more supervised contacts to go with a report at the end, so we shall see what happens.

      This is a really important subject where I am at a loss with the "system" and I think of myself quite up to speed with the system. I used to work with parents who were frustrated, now I know why!

    • Gloriousconfusion profile imageAUTHOR

      Diana Grant 

      8 years ago from United Kingdom

      @anonymous: I am constantly shocked by the number of people who put their own needs first, and use their children as pawns, to get back at the other parent, or to win concessions.

      It is lovely to hear a "good news" story.

      In my divorce we worked things out reasonably, without any serious dispute.

      It was a different story altogether with my current partner's children, who were stopped from seeing him for six years. It was only when the youngest turned 18 that they made their own enquiries and searched for him, and now, three years later, they still see him almost every week. They adored him, and those lost years were so destructive to all of them.

    • profile image

      anonymous 

      8 years ago

      Hi, great lens... I have never been married but I am separated from my sons mother. I fully understand the effect it can have on the children. I am lucky in that my ex and I are on decent terms and we both did everything possible to make our 4 yr old son feel ok about it all. It took time and a lot of love, but he's a happy little man now, and spends half his time with me and half with his mom. The kids come first.. always. My story is a good one, but I know this is not always the case... How you make them feel will stay with them.. they will remember.

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