Arrangements for children in a divorce
First published 19 April 2018 • Updated 18 November 2019
If you are seeking a divorce and you have children together, their care and wellbeing will be the most sensitive issue of all. Unless one of the parents poses a risk, in most cases there will need to be an arrangement that allows both parents to see and care for their children for a reasonable share of the time. This arrangement can be informal, agreed simply between you and your ex-spouse/civil partner, or it can be made legally binding.
Here are some useful things to know when you set about making such arrangements for your children.
Who is responsible for the children?
Parental responsibility is the right to make the key decisions in a child’s life, such as choosing their name, deciding which school they will attend, consenting to medical treatment and so forth. Mothers have automatic parental responsibility unless they have given up their child for adoption. Fathers have parental responsibility only if married to the mother at the time of the birth, or named as the father on the birth certificate (for children born after 1 December 2003).
If you don’t have parental responsibility, you can apply to the court for a parental responsibility order.
Please note that parental responsibility does not include any right to see the child. For this you need either an informal contact arrangement or a legal child arrangements order.
Making an agreement between you
It is usually easier (and cheaper) for all concerned if you and the other parent can reach an amicable agreement about your children. This agreement would address questions like:
- Which parent will the children live with for most of the time?
- How much time will they spend with the other parent?
- When and how will this contact take place?
- What other contact will take place (e.g. phone calls)?
You don’t need to put your agreement in writing, but it can help. A parenting plan is one way of doing this, especially if there is tension between you. You can get free help with creating a parenting plan at this charity site.
Do you need help agreeing?
If you have difficulty making an arrangement between you, you needn’t resort immediately to legal action. Mediation is an effective way to resolve differences and remove the need to dispute child custody in court.
You appoint an impartial mediator to act between you, who can help you to address all the issues objectively and keep communication between you to purely factual and practical matters. They can also guide you on points of law, though they cannot take sides. If you need advice, your own solicitor will provide that.
Another alternative to a court case is collaborative law. You and your spouse/civil partner conduct a series of meetings in person, along with your respective solicitors. This is far less confrontational than a court case and encourages open communication. It is also much cheaper, less stressful and more likely to result in a solution that satisfies both parties – and most importantly, the children. Ask your solicitor about mediation and collaborative law.
Obtaining a child arrangements order
If you cannot come to a satisfactory agreement between you, the next step is to ask the court to decide. A court can issue a child arrangements order, which sets out rulings on how care of the child/children will be shared between the parents. It will specify things such as where a child’s primary home will be, the level of contact granted with the other parent (often called ‘access’), when and how this will take place, and so forth. Sometimes you will hear people referring to ‘custody’ or ‘joint custody’, but these no longer exist as legal concepts.
When making a child arrangements order, a court will not be biased towards or against either parent, but is required to act solely in the interests of the child or children concerned.
At what age can a child decide which parent to live with?
Sometimes children themselves can express a wish about which parent they would prefer to live with. Their views are always given some consideration, which increases as the child gets older. By the time a child is 12 or 13 they may be considered ‘competent’ and their views will have considerable weight (though the court is not bound to follow them). By the age of 16, however, a child can legally decide where they want to live, unless this goes against an existing child arrangements order. When they reach adulthood at the age of 18, they are completely free to choose.
How is child maintenance decided?
The parent who does not live in the child’s primary home will in most cases make regular payments towards their upkeep. This is known as child maintenance. It is best if you and your ex-spouse/civil partner agree this between you, as it is less costly than going to court.
The level of child maintenance will vary based on several factors, including your level of income, any benefits you receive, any other children (in your new household) whom you must support, and how much contact you have with your children. There is a useful child maintenance calculator on the government’s website that can give you an estimate of what you may have to pay. Find out more about working out child maintenance.
Making arrangements for your children is a very emotionally charged process, but your solicitor can help to make it simple and less stressful.
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