Divorce is never a pleasant subject to address but it’s a reality and it has to be faced. This begs the question of what separating couples need to keep in mind if they have children. I have been speaking with Grainne Fahy, Head of Family Law at legal firm BLM to find out what parents need to know.
Over the years I have heard some real horror stories when parents have split up. Even so, the days when a mother was automatically granted custody are, thankfully, history. As Grainne outlines, even the word custody is no longer used.
To be entirely honest, I hope you never have to rely on the information outlined below. If, however, you do, I hope it makes your divorce journey that bit easier and that the resulting relationship with your children is healthier as a result.
Historically, when a couple divorced custody was generally granted to the mother with dad seeing his kids every other weekend or so. How do things work today? My understanding is that joint custody is usually the norm?
“When it comes to mothers taking precedence in terms of where children live, things have changed significantly, even in the years since I started to practise family law. I won’t tell you just how long that is, but let’s just say that when I started as a family lawyer, the suggestion of any sort of shared care arrangement would have been a rare proposition. Now, thankfully, it is very much the norm. Families are changing and the law is changing alongside that.
“Beyond these kinds of decisions, another important change is we no longer use cold phrases such as “custody”, “access”, “residence” and “contact” and instead we prefer to use phrases such as “lives with” or “spends time with”. Whilst this may seem a small step, I believe that it really changes the landscape and softens the approach. We are talking about children after all!”
And what does that mean in practice? Children I know in this situation often spend a week or a fortnight with each parent and then swap over.
“Arrangements can look very different from family to family. I find that the week on, week off arrangement tends to be impractical in reality and can create all manner of problems for children and indeed their parents; for example it can make balancing work with their childcare responsibilities incredibly difficult.
“Sometimes, and particularly when parents live far away from one another, an ‘on-off’ care arrangement may happen, but it is no longer the norm. Similarly, the previously very popular “every other weekend and one day per week after school” arrangement is now far less common. However, it is sometimes the meaning of a shared care arrangement that carries the most weight and importance to the parents and the children. Neither parent is more important than the other and that is recognised.
“The quantity of time spent with each parent will be carefully considered in the modern court and ultimately what is in the children’s best interests is the paramount consideration.
What is the process for formalising child custody arrangements?
“There is enshrined in the Children Act what is known as the “no order principle.” Essentially what this means, is that the courts do not want to get involved unless they absolutely have to and parents are encouraged to agree matters between them.
“The agreements do not need to be formalised, though for both parties’ sake, it is usually advisable to have something in writing either directly between the parents or, if needs be, confirmation in correspondence with a solicitor. When parents attend mediation with a legal professional a written document confirming the agreement will be produced, assuming it is successful. Parents must attempt mediation before issuing an application with the court, but ultimately if the matter goes to court, then the arrangement will usually be formalised in an order imposed by the court or agreed by consent.
(The above applies to England and Wales only)
We’ve all heard horror stories regarding child custody cases. What are the complicating factors?
“There can be a myriad of complicating factors and I will touch on a few of them here.
“Allegations of domestic abuse within the relationship can have hugely detrimental effects on the child arrangements going forward. The court needs to be satisfied that the ongoing relationship with a non-resident parent is in the children’s best interests. Often the party who has been the subject of the abuse cannot countenance the ongoing relationship and that is very difficult. These cases need very careful consideration.
“I find that cases become very involved and parents’ views entrenched when one party wants to relocate abroad with the children, usually to go home. These can be very complicated and very costly but there has been a seismic shift in recent years in these sorts of cases too. While previously if a mother wanted to go home, whilst a difficult application, this was more often than not bound to succeed. This has now changed.
“Parental alienation is a real issue. Sometimes sadly, the non-resident parent can’t afford to pursue litigation and they give up. Those are the saddest cases, without doubt.
“Finally, the court system is on its knees due to a huge backlog, so often cases can take years to complete and this can result in a fractured relationship that can never be repaired.”
What can parents do to make the process easier for themselves and their children?
“As difficult as it might seem amidst a dispute with a former partner, the children should be at the front and centre of all your thoughts and processes. The parents once presumably loved each other and bearing in mind that they both love the children, need to protect them rather than punish them for the end of the relationship.
“Parents should always try to agree matters regarding their children. Court cases can be long and expensive both emotionally and financially and if the court has to impose an order there are rarely any winners.”
What of same sex couples, is there any difference in how child custody is organised when a same sex union is dissolved?
“It is exactly the same as heterosexual couples so everything above applies.”
Thus far, I’ve only mentioned marriages. What is the position if a couple are not married?
“Marriage does not tend to be a factor and it is exactly the same, assuming that each parent is on the birth certificate and therefore has Parental Responsibility.”
What is the one piece of advice you would give to any couple that is looking to formalise child custody arrangements?
“Throughout my career it has always been the same – don’t lose sight of what is in the children’s best interests and certainly don’t weaponise them.”
What’s the situation with stepchildren? Can they be subject to child custody arrangements if a subsequent relationship breaks down?
“It can be slightly more difficult and each case will very much rest on its own facts. It is much more uncommon but it is possible, yes, with leave of the court if necessary.”
Of course sometimes other relatives may need to make child custody arrangements (IE grandparents or aunts and uncles if natural parents are incapacitated for some reason). When is this likely to happen and who can make a child custody claim?
“I have never seen a case when an aunt or uncle applied to the court to see a child, though many grandparents. It can be a huge loss to them when families separate and with leave of the court they are perfectly entitled to ask the court to make an order that they should see them. If the natural parents are incapacitated then a Special Guardianship Order or adoption could be considered and tends to be most practical route.”
I hear from a lot of men who feel the court system is still biased against fathers. Do you think there is some way to go to make the system truly equitable?
“I think we are nearly there. In fact, of late, I have seen cases swing very much in the other direction. The previous bias is no longer acceptable and thankfully most judges are very live to that.”
You can also find more information online at the BLM website.