Arrangements for children after divorce or separation
If you are contemplating divorce or separation from your partner, your first concern will probably be about where your children will live and how they will retain contact with both parents.
When you separate from each other, you will both continue to be parents. Therefore, it is important to make sure that the process of unravelling your marriage or relationship doesn't stop you being able to co-operate on what is best for your children. A constructive approach through the divorce or separation will lay the best foundations for the children to feel settled with the new family relationships.
You know your children best, so you will be best able to consider the effects of your break-up on them and together devise the most suitable living arrangements. Negotiation is important as agreements reached together are more likely to work in the long term and be respected by the wider family. Family mediation services, together with mediators and Resolution solicitors, can help you achieve this.
If you can’t agree on the arrangements, you can ask the courts to decide the matter if you have first met with a mediator to decide whether or not mediation is a better way to resolve the issues. Carol Maher will be able to advise you on the best way of doing this, without letting matters relating to children get tangled up in any financial disputes.
Rather than considering the ‘rights’ of parents, family law talks of ‘parental responsibility’ for a child. If a child’s parents were married when the child was born, both will have parental responsibility for the child. A father who is not married to the child’s mother will not automatically have parental responsibility, unless named as the father on the Birth Certificate after 1st December 2003, but can acquire it by agreement with the child’s mother or by applying to a court.
The Children Act 1989 is the main piece of legislation dealing with family disputes about children. If there is a dispute either parent can apply to the court for a ‘child arrangements order’, to determine with whom a child is to live, spend time or otherwise have contact with. The Children Act says that the child's welfare is the paramount consideration when the courts consider any question in relation to the upbringing of a child, and that the court must apply what is known as the 'welfare checklist' to help it make its decision.
The welfare checklist starts with a presumption that involvement of both parents in a child’s life is in that child’s interests; it looks at:
- The wishes and feelings of the child (considered in the light of his/her age and understanding)
- His/her physical, emotional and educational needs
- The likely effect of any change in his/her circumstances
- His/her age, sex, background and any characteristics which the court considers relevant
- Any harm which he/she has suffered or is at risk of suffering
- How capable each of parent is of meeting his/her needs.
A Child and Family Reporter may be asked to help you resolve the dispute or to help the court decide. The court will not make any order relating to a child unless it is satisfied that making an order would be better for the child than not making an order.