Children and divorce and separation

Family or relationship breakdowns often involve children. Issues may include which parent a child will live with following a divorce or separation, their contact with the non-residential parent and whether they may move abroad or to a different part of the UK with the residential parent.

Situations involving children give rise to considerable worry and stress for everyone concerned, including the children.

Our children and divorce solicitors have great experience and can advise and give guidance as to how parents and other family members can adopt a realistic approach.

Children and divorce

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General law on children

In England and Wales, the law states that the Courts should only make orders relating to a child if this is necessary for the child’s best interests. It is preferable for decisions relating to a child to be made by his or her parents.

If a Court becomes involved in a dispute concerning a child, the overriding consideration is the welfare or best interests of the child.

The Court must refer to a ‘welfare checklist’. It contains a number of matters e.g the child’s age and sex, the child’s wishes and feelings taking into account his age and maturity, the child’s physical, emotional and educational needs, the effect of any change on the child and any harm which the child has suffered or is at risk of suffering.

Orders which the Court can make

The most common orders made by the Court are as follows:

Child Arrangement Orders

Child Arrangement Orders have replaced Residence and Contact Orders (previously Custody and Access Orders).

A Child Arrangement Order (CAO) regulates the arrangements for a child and can provide:-

  • With whom the child is to live, spend time or otherwise have contact
  • Where the child is to live, spend time or otherwise have contact with any person

Contact is the time a child will spend with an adult and can take different forms:

  • Direct face-to-face contact with the adult named in the Order
  • Overnight staying contact
  • Supervised contact (sometimes at a contact centre)
  • Indirect contact – by cards or letter
  • Contact by electronic communications, e.g., Skype, Facetime, or e-mail.

A CAO may state the person with whom the child is to live, but not specifically where. It may also state how a child will share their time between parents, but this will not necessarily be equally.

Prohibited Steps Orders

These prevent a person from taking or continuing an action in relation to a child without the agreement of both parents or permission from the Court e.g changing the child’s surname or changing the child’s school

Specific Issue Orders

These are made by the Court to decide disputes between parents over major issues relating to the welfare or upbringing of a child e.g. consent to serious medical treatment or a change of schools.

Parental Responsibility

If the parents of a child are married to each other, they both have parental responsibility and acquire the legal rights and duties relating to the child.

The mother will always have parental responsibility. If she is not married to the father when the child is born but the father is named on the birth certificate, he acquires parental responsibility automatically. If he is not named , parental responsibility can be acquired by a special form of agreement or by Order of the Court. Slightly different rules apply in the case of children born to unmarried parents before 1st December 2003.

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