Separating couples often find it hard to agree on where their children should live and how much contact they should have with the other parent. Tension between couples frequently stems from the lack of communication that has built up during the course of the marriage. Often separating couples assume that where children are involved, a lengthy Court procedure will be required to establish their future welfare. Although it may be the only way forward, those who follow the Court process to decide on child custody often find it a lengthy, stressful and expensive procedure.
Do we have to go to court to resolve child custody?
Alternatives to Court are available and should be actively considered before engaging the Courts in making the final decisions concerning the welfare of the children. These alternatives, which are more “relationship-friendly”, help separating couples to discuss and resolve custody and other children disputes thus reaching an agreement without stressful and expensive court proceedings. They also offer a quicker solution for everyone concerned allowing the children to find some stability sooner rather than later. Options include:
• Collaborative law
• Solicitor to solicitor negotiation
More detail concerning these alternatives will be discussed in further articles. Essentially, each process aims to help couples meet and reach agreement with the direct assistance of either a qualified mediator, collaborative lawyer or a specialist family solicitor.
What if we cannot agree child custody or contact time?
It is important to stress that the starting point in a dispute relating to children is that the court will not make an order unless it is necessary. If agreement cannot be reached between the couple then an application to the court maybe the only solution but this is usually seen as a last resort. The court will only make an order if it will be better for the child to make the order, than not to do so.
If the courts do intervene what could they order?
If any dispute cannot be resolved by the alternative forms of dispute resolution mentioned above, then an application can be made to the court for an order under the Children Act 1989. This Act is child centered and the emphasis in English law is on the rights of children and the responsibilities of parents to their children. The paramount concern for the court is the welfare of the child. There are a variety of orders that the court may enforce as follows.
• Residence order This states who the child[ren] will live with, and the court can make a shared residence order which will mean the both parents have an order.
• Contact Order This will set out the type and frequency of contact. A child has a right to a relationship with both parents, and sometimes an order is needed to ensure a child gets that right.
• Parental Responsibility Order All married parents share parental responsibility, until their children reach 18. Parents do not lose parental responsibility if they divorce. Unmarried fathers can acquire parental responsibility if his name is on the child’s birth certificate, or by agreement with the child’s mother or by order of the court.
• Prohibited Steps Order This order limits the exercise of certain parental rights and obligations e.g preventing a parent from seeing a child.
• Specific Issue Order This order contains a direction(s) in respect of a particular issue in dispute such as where a child will go to school, or perhaps whether a parent can take a child out of the country.