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What is Considered When Deciding Child Custody?

Although not a term used in the legal system anymore, many people still refer to ‘custody’ when talking about who a child will live with and spend their time with following a separation. The courts now refer to ‘child arrangements’ when discussing everything from where children will live to where they’ll go to school and other important decisions that will affect their lives. You may also hear the term ‘child residence’ when matters such as this are discussed.

How are children affected by separation?

A divorce not only has a big impact on the separating couple. It can also cause considerable upheaval for children, who may go through disruption to their normal routines as well as emotional distress.

Very young children may not understand what’s happening, as well as experiencing feelings of guilt, anxiety and sadness. This is why it’s extremely important for parents to reach an agreement on child arrangements as part of the divorce or separation process, so that it’s crystal clear what will happen when the split is finalised. Children need stability and routine, so establishing at an early stage where they’ll live and how often they’ll see each parent is crucial. If parents can agree, all the better for the wellbeing of the child.

How are child arrangements decided?

When appropriate, the courts and child custody solicitors (now called child arrangement solicitors) will recommend that the parents reach an agreement between themselves about child arrangements. This is by far the most positive approach for all involved, in part because it means that there are no disputes or litigation for the family to go through. A mutual agreement is also a great sign for childcare arrangements for the future, as it means that the parents are able to communicate and work together to come up with a plan for the best interests and wellbeing of their children.

If parents can’t agree, the assistance of a family law solicitor can be extremely helpful. If communication between the separating parties has broken down, solicitors on both sides can negotiate and discuss child arrangements on behalf of their clients to find the best possible solution.

There are many ways you can do this, including:

Mediation

Mediation happens in a safe, neutral space and is conducted by a trained, experienced third party. It’s essentially a non-confrontational session designed to help all parties discuss their feelings and reach a resolution to their dispute, without involving the courts or embarking on expensive and potentially disruptive legal proceedings. With a mediator on hand to help you and your ex-partner reach your own agreements, you can hopefully come up with a plan that everyone can live with and that’s the right solution for your children.

Making an agreement legally binding

If you’ve managed to reach a solution for child arrangements post-separation, it’s a good idea to get your agreement officially written up by a family law solicitor to make the child arrangements in detail and clear between you both. You can make a record of what you’ve agreed in a Parenting Plan and both of you can sign this agreement, however this wouldn’t be a legally binding document. The court may consider this should the agreement break down and you have to attend court. Ultimately, the court will consider what it thinks is in the best interest of the child when making any decision in respect of a Child Arrangement Order.

Going to court

Litigation relating to child arrangements can be very expensive, and it sometimes takes a long time for issues to be settled. Parents should also carefully consider the effect of a drawn-out legal dispute on their children, as well as their own emotional wellbeing. If all else fails, you can apply for a court order to help resolve your issues. You’ll need to first prove that you’ve tried mediation as a means of resolving the dispute.

Depending on the circumstances, you can apply for a Child Arrangements Order or a Specific Issue Order (relating to specific questions about how a child is brought up) or a Prohibited Steps Order (relating to any concerns that you may have on where the child is living or taken abroad etc). It’s highly recommended to seek legal advice from a family law expert to help you with your case. In all cases, a court will prioritise arrangements that are in the best interests of the child.

Do the courts always favour the mother?

This is a question that our family lawyers at Slater and Gordon are asked all the time. There’s a commonly-held assumption that mothers are automatically given priority by the courts, but this isn’t true. The legal system aims to avoid bias and to put the needs and best interests of the child first, and will always consider cases on their individual merits. Family law has changed a lot over the years, as have the caregiver roles in modern families. To reflect this, legal rulings aren’t made on the basis of the gender of parents, but rather on what will be most beneficial to the child.

In disputed cases, each parent is assessed individually before the court comes to a decision on residency.

Worried that your rights haven’t been fully represented? Contact a family law expert

If you’re going through a divorce and have concerns about child arrangements, it’s crucial to seek legal advice from a family law solicitor right away. Please call the experts at Slater and Gordon Lawyers on freephone 0808 175 8000 to discuss your case and for expert advice on how to proceed. You can also contact us online and we’ll arrange to call you back for a consultation at a time that suits you.

Our family law team is one of the biggest and most experienced in the UK, and we’ve helped many parents to reach resolutions for their children even when all communication has broken down. We’ll represent your rights and help you to find the very best solution for your children and your family.

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