10 November 2016
Children Arrangements - Legal Vocabulary Explained
Custody, access, visitation……what’s in a name when it comes to arrangements for children?
There has been much written in the media recently about Brad having ‘supervised visitation’ with his children following Brangelina’s separation.
This made me reflect on the many different, confusing and often emotive terms used to describe arrangements for children after their parent’s separate.
Custody and Residence
Both of these words have been used in English law to identify the parent with which a child has their main base.
The word custody, however, suggests ownership and therefore gave a sense that if someone had custody of a child they had more power than the other parent. So, because of this the word custody was replaced with the word residence which was intended to be a more neutral in tone referring merely where a child was living not giving any greater entitlement.
Residence then became a title which was fought for by parents in circumstances where arrangements for children were largely agreed. Having ‘residence’ was perceived as akin to having ‘custody’ and the link with power and control reared its head again.
This phrase was usually used in a situation where a child spent a significant amount of time with both parents so that neither could be described as providing the main base. It was not necessary for this sharing of time to be equal for the term to be used to describe the status.
Access, Contact and Visitation
These terms refer to the time a child spends with the parent with which they are not living.
Access like custody became an unpopular term with those trying to achieve amicable solutions. Access suggests that someone is being allowed or being given permission to spend time with their children which gave a sense that they were in some way a secondary parent.
The term contact was then introduced to replace the word access. A slightly strange word I have always thought, but certainly better than access. It is a term which continues to be used by the courts despite the introductions of child arrangement orders as set out below. This is particularly so when referring to indirect contact.
Visitation is not a word used in English law but is used under US law, and is often seen in the media, to describe time a parent like Brad Pitt who the children are not living with spends with them.
Direct, Indirect And Supervised Contact
Direct contact describes the time a child spends in person with the parent they are not living with. This can include overnight stays which are referred to as overnight contact.
Indirect contact refers to communication between a child and the parent they are not living with which is anything other than face to face time. Indirect contact would, therefore, include: speaking on the telephone; skype or FaceTime conversations; sending letters, cards or presents.
Where direct contact is taking place indirect contact can be used in addition enabling there to be more frequent communication between the child and parent. It is also used in cases where there are reasons why the child spending time in person with their parent is not possible or in that child’s interests.
Supervised contact is the time that a child spends with a parent in person but during which a third party is present. This is done where there is a concern that the child’s welfare might otherwise be at risk.
The supervised contact may take place in a formal setting such as a contact centre where the supervision is provided by independent volunteers. It might, however, be that an agreed family member or friend can supervise the contact in a more informal setting.
The phrases holiday contact, Christmas contact and others are used to refer to the time that a child spends with a parent during a particular period.
Recently the law was changed to remove reference to residence or contact.
This was as a result of pressure from those involved in children law cases who found that these ‘labels’ were increasingly preventing cases being amicably resolved.
The status of being the parent with ‘residence’ was still being perceived in many cases as being the superior one that somehow gave that parent greater power and rights. Although this was not correct it was in my experience often a stumbling point. Using shared residence to recognise that a child has two homes of equal importance following a separation sometimes helped but it was not always possible to agree matters on that basis.
A change in the law was introduced so that Residence and Contact orders are no longer made. Instead, the court makes Child Arrangements Orders which state where a child lives and who they spend time with. Child Arrangements Orders are in effect residence and contact (or custody and access).
The concept of shared residence is now reflected in orders which state that a child lives with one parent for a certain period of time and the other parent for the balance of the time.
So what is in a name when it comes to arrangements for children?
Inevitably the desire to be the parent with whom the child lives still exists and some parents are prepared to go through the court process. The language of Child Arrangements is, however, certainly less emotive and a shared living with order seems to sit more easily even where the sharing of time is some way from equal.
As a parent, your rights and responsibilities don’t arise by virtue of how much time your child spends with you. You have them by virtue of parental responsibility which you can read more about in Parental Responsibility and Parents’ Rights Discussed and in Parental Responsibility – Who Makes the Decisions?
Vicki McLynn is a senior family lawyer at Slater and Gordon in Manchester. She is an expert in resolving disputes over arrangements for children.
For further advice call the expert children lawyers at Slater and Gordon on freephone 0800 916 9055 or contact us online.
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