Children And Divorce

What happens when both Mum and Dad want custody?
Unfortunately, divorce isn’t just about a clean break from the person you chose to marry. More often than not, children have come along in the meantime and yet they don’t really get a say in the matter.

Dealing with the arrangements in relation to children following divorce and separation can be a highly emotional and delicate issue.  Sometimes the arrangements for the children do break down.  And if the problems can’t be overcome, for example by going through mediation, an application will have to be made for the Court to decide what happens.

So what kind of orders might the Court make?

The following are examples of orders that may be made by the Court in relation to your children if you divorce:

Parental Responsibility Order
‘Parental responsibility’ is defined in s.3 (1) of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to his/her child and his/her property”.

So what exactly does this mean?

Well, a mother of a child will automatically have parental responsibility irrespective of her marital status. 

If the father was married to the mother at the time of the birth of the child he, too, will automatically have parental responsibility. 

After the 1st December 2003 an unmarried father present when the birth was registered and named on the birth certificate will have parental responsibility.

However, prior to the 1 st December 2003,  if the father was not married to the mother at the time of the child’s birth, he does not automatically have parental responsibility, but can acquire it either by agreement with the mother, by order of  the Court, or by obtaining a residence order. 

Guardians, adoptive parents, the local authority and anyone with a residence order in their favour can also acquire parental responsibility.

Contact Order
A contact order requires the person with whom the child is living to allow the child to visit, stay or have some form of contact with the person named in the order.

If the parties are unable to agree the arrangements either party may apply to the court for an order to determine the contact arrangements.  This is known as an ‘Application for a Defined Contact Order’ and is usually made by the parent who is unhappy about the contact. 

Where an order for contact is made, either parent can apply for the order to be varied or revised.  An application can also be made to enforce a contact order where one parent is refusing to comply with the terms of a contact order.

In limited cases, the Court will not order contact to take place where it is not in the best interests of the child.  

Residence Order
A residence order determines where a child shall live.

A residence order can be made in favour of more than one person, and if those people are not living together the order will be for joint  shared residence. 

The granting of a residence order automatically gives you parental responsibility for the child. 

Residence orders may be enforced if one party fails to comply with the order.

A residence order normally ends upon:

• the child reaching the age of 16, or

• if the parties live together for a period of more than six months following the making of an order, or

• a care order is made in respect of the child.

Prohibited Steps Order
A Prohibited Steps Order prevents a parent from doing something.

An example of a prohibited steps order is an order preventing one parent from removing the child from the UK without the consent of either the Court or the other parent or person with parental responsibility.

Specific Issue Orders
This order enables the court to determine a specific issue which has arisen, or may arise, in connection with the child.

For example, the decision to change a child’s surname, choice of schools, religious upbringing or medical treatment.

Whenever the Court is asked to make a decision in respect of a child, the Judge will always consider the following matters:

• the ascertainable wishes and feelings of the child concerned (in light of his/her age and understanding);

  ii)  the child’s physical, emotional and educational needs;

  (iii)  the likely effect on the child of any change in his/her circumstances;

  (iv)  the child’s age, sex, background and any characteristics which the court considers relevant

• any harm which the child has suffered or is at risk of suffering;

  (vi)  how capable each of the child’s parents are (and any other person in relation to whom the court considers the question to be relevant) of meeting his/her needs

  (vii)  the range of powers available to the court under the Children Act 1989 in the proceedings in question.

In all cases, if you are seeking divorce and unable to come to an agreement with your spouse about the interests of your children, you should seek the advice of a specialist Family solicitor.

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