Relationship breakdown
Arrangements for children
If you are contemplating divorce or separation from your partner and you have children, your main concern is likely to be about them: where and with whom they will live, their financial security and how they will maintain good relationships with both you and your former partner.
A constructive approach through your divorce or separation will lay the best foundations for your children to settle into your new family structure.
However, your emeryjohnson solicitor will understand that this may be difficult, especially in cases of domestic violence. If your former partner is unable to co-ooperate and agree on contact arrangements which put your children first and maintain some degree of stability, your emeryjohnson solicitor will advise you on your options.
You know your children best and can best consider the effects of your break-up on them and devise the most suitable living arrangements. The law encourages couples to reach an agreement over future arrangements for their children without the need for court involvement.
Rather than considering the 'rights' of parents, family law refers to 'parental responsibility' * for a child and what used to be called 'custody' and 'access' are now known as 'residence' and 'contact'
A parent has financial responsibility for a child until s/he reaches the age of 17 or leaves full-time education, whichever is the later, regardless of whether or not there is any contact. The two issues are entirely separate and you should try to discuss them at separate times to avoid disagreements about maintenance spilling over into arguments about contact which are unlikley to be in the best interest of your child.
Before a Judge certifies that your decree nisi should be pronounced, she will consider the statement of arrangements for children under the age of 16 or between 16 and 18 but still in secondary education, where and with whom the children live, which schools they attend, who looks after them and how often they see the other parent and whether these arrangements are agreed by your spouse.
The Judge can direct that the divorce is not to be made final until she is satisfied with arrangements made for the children and she may ask for further information or ask you both to attend an informal appointment to discuss any areas of concern.
The Judge may recommend mediation or request reports and further meetings, probably with the child(ren), at home or at a CAFCASS (Children and Family Court Advisory and Support Service for England and Wales) office. She can also check whether your child's school has any concerns, check with doctors, Social Services, the police etc.
Although this can be a traumatic and distressing period for everyone involved, you will have your emeryjohnson solicitor's advice and support throughout.
Agreements reached in negotiation with your spouse are more likely to work in the long term and be respected by the wider family. Family mediation services, including Resolution, together with your emeryjohnson solicitor, can help you achieve this.
If you can't agree on the arrangements, your emeryjohnson solicitor can advise you on the best way of asking the courts to decide, without letting matters relating to children get tangled up in any financial disputes.
The Children Act 1989 states that your child's welfare is the paramount consideration in any question relating to their upbringing. The court will apply a 'welfare checklist' to help it make its decision, looking at:
Your child's wishes and feelings (in light of his/her age/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 other relevant characteristics
Any harm which he/she has suffered or is at risk of suffering
How capable each of parent is of meeting his/her needs
An independent Child and Family Reporter may be asked by the court to help you as parents resolve the dispute or to help the court decide.
The court can issue a number of orders including residence, contact, "Specific Issue Orders" to resolve issues such as where a child will go to school or to decide on medical treatment and "Prohibited Steps Orders" which can stop something from happening for example to stop one parent from taking the child abroad. emeryjohnson has experience in all of these areas as well as applications to remove children from the jurisdiction of the United Kingdom eg Australia.
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. Your emeryjohnson solicitor can provide specialist advice on all of these issues.
* If you were not married to your partner when your child was born, your spouse will not automatically have parental responsibility but can acquire it by agreement with you or by applying to a court. New rules from 1 December 2003 say that a father who is not married to the child's mother will acquire parental responsibility if he jointly registers the child's birth.