Helping you make practical and fair arrangements for your children
Doing the best for your children will be one of the biggest concerns and challenges of your divorce or separation. There are many things to consider, such as child arrangements, child maintenance and funding their private school fees or further education.
When a relationship breaks down, one of the most important aspects is what happens to your children, and what their arrangements will be for the future. Your children are also likely to be very concerned about how a separation will impact their relationship with each parent, their schooling and their friends. As one of the UK’s leading family law firms, we can provide the knowledgeable, considered and reassuring legal support you need.
What is child custody?
Child custody refers to the legal arrangement that determines who has the responsibility of caring for a child after a divorce or separation. Child custody can either be sole custody, where only one parent has the responsibility of caring for the child, or joint custody, where both parents share the responsibility of caring for the child.
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Agreeing parenting arrangements out of court
This may be the most emotionally difficult part of a divorce or separation. An amicable decision made out of court is ideal but not always possible in such difficult circumstances. If that isn’t possible, there are other processes available to help you reach a decision. One of these is mediation which can be used to explore and agree a variety of decisions about the children, not just who the children live with.
Deciding parenting arrangements through a court
If you have to go to court, the first step is the First Hearing Dispute Resolution Appointment. If there is a serious disagreement between you, the court can appoint a CAFCASS Officer (Children and Family Court Advisory and Support Service Officer) to prepare a report on what’s in the best interests of your children. This can take around 12 to 18 weeks. The court will usually attach a lot of importance to the CAFCASS Officer’s recommendations and in some cases, the child arrangements are settled on the basis of the report.
If you don’t agree to the CAFCASS recommendations, the matter will go to trial where you will both need to give evidence, along with the relevant witnesses and any experts who have been instructed. The judge will then make a final decision about the arrangements for your children.
Many parents find it helpful to establish a Parenting Plan as an alternative to pursuing a child arrangements order. This sets out in detail how you both will deal with all of the important issues while keeping the decision in your control without any involvement from the court, including:
• communication between you and your partner
• child safety
• child arrangements after divorce (and in the interim)
• how they’ll communicate with you when they’re not in your home
• specific childcare arrangements
• funding arrangements for your children
Separated parents’ information programme
This is a short group programme where you learn and discuss the best ways to parent your children while you are separated. There are several programme providers and the court frequently directs parents to attend this course as part of your court application.
Child support is not usually dealt with by the courts, therefore parents are encouraged to reach their own agreement about maintenance for their children, If you can’t reach an agreement, you can approach the Child Maintenance Service [CMS], previously called the Child Support Agency. This can be quite complicated, so it is well worth having legal advice.
The guidelines state that you, as the paying parent, should pay a certain percentage of your gross income as maintenance for every one of your children who is living with the other parent.
The actual sum varies according to a number of factors, such as how many children you have and how much time they spend with you. The CMS calculates your annual gross income based on the latest information filed at HMRC and converts it into a weekly figure for payment.
If your income is more than £3,000 per week, the receiving parent can apply to the court for a ‘top up order’. If you live abroad or your child has special needs, then the court can again make orders about the amount of maintenance.
Payments under the CMS continue until your child is 16 or up to 20 if they remain in full time secondary education or the equivalent to A level.
Who pays school and university fees after a divorce?
If your child is at private school, you’ll need to arrange how to fund that cost, which is separate from child maintenance. Payments are usually made directly to the school and will usually form part of the financial discussions on divorce and separation.
Child maintenance orders end when a child is 18 or finishes full time secondary education, whichever is later. This means you may need to consider how to fund your children if they go to university (referred to as tertiary education).
Financial claims on behalf of children
The financial settlement of your divorce or dissolution of a civil partnership will include claims concerning your children. For example, if your children are mainly living with you, you can claim for housing that’s suitable for you and your children. Certain lump sum payments can be made on behalf of the children, for discrete special needs such as computers, furnishings, dental treatment, etc.
If you were living as an unmarried couple, you can make financial claims on behalf of your children under Schedule 1 of the Children Act 1989. These can include:
• child maintenance, with an element of child carers’ allowance for the parent with care
• lump sum payments for discrete expenses on behalf of the child
• a settlement of property order
The settlement of property means the paying parent must provide a home for their child and the parent carer until the child is 18 or ends full time secondary education, whichever is later (although the parties can agree between them to extend the period). After this, the property reverts back to the paying parent’s ownership. These types of claims are only successful in specific circumstances therefore it is important to take expert legal advice before pursuing such claims.
Is the law different for children of same sex couples?
If your same sex relationship has broken down, your partner who is treated as a legal parent can be responsible for maintaining your child. However, the law concerning same sex couples is complex and constantly evolving, so we strongly advise you to seek our expert legal advice.
What is parental responsibility?
Parental responsibility gives a father or legal parent certain rights and responsibilities regarding your child. This happens in one of three ways:
• if the father is named on the birth certificate
• you agree this between you, in which case a parental responsibility agreement will be drafted and registered
• via a court order
As a parent with parental responsibility, you have the right to be involved in the major decisions concerning your child’s life, such as where they are educated, their religion, the name by which they are known, and giving authority for medical intervention.
Moving abroad with a child after divorce
Sometimes a parent moves abroad following a separation or divorce. This can be devastating for the child and the parent left behind. Many parents do work together to sort out how their children will maintain the relationship with each parent and, for example, how much time they spend with them during their holidays.
A child has the right to have a relationship with both parents, and a move abroad will have an inevitable impact on the family. Sometimes parents cannot agree on an arrangement, and if this happens to you, you need to take legal advice. The welfare of your child will always be the court’s primary concern.
Holiday arrangements for separated and divorced parents
Once you have separated or divorced, holiday arrangements for children can sometimes be difficult to agree, along with other important times of the year such as birthdays, family events and divorced parents’ Christmas arrangements. Most parents are able to come to some kind of agreement with these dates and events, even if they aren’t able to all be together at these times. This often means that separated or divorced parents take turns on alternate years for annual events.
One consideration for holidays is that if a separated or divorced parent wants to take their child abroad, you will usually need the permission of the other parent and anyone else with parental responsibility to do so. Taking a child abroad without this permission is considered to be child abduction and is illegal. Usually, a letter from the other parent will suffice as proof of permission. It will need to include their contact details and details of the trip you’re taking. It is also recommended that you take copies of your child’s birth certificate (or adoption papers) and your divorce certificate with you. This can be especially important if you and your child have different surnames.
If you and your former spouse or partner cannot agree on permission for a holiday or trip abroad, you may need to apply for permission from a court. Moore Barlow can help you with the legal aspects of this, if required.
Who gets ‘custody’ of a child in a divorce?
This is usually the biggest question in a child ‘custody’ case. The answer to this can be a complicated one due to many factors coming into play. The court uses a checklist of factors that may be taken into account in order to make the decision that best serves your child’s best interests.
Child arrangement orders
This type of order establishes where the child or children will live and how time is spent with parents. As well as determining where a child lives and who the child spends time with, the court can also determine specific issues such as whether a child should be vaccinated, or even ensuring that the child’s name cannot be changed or they can’t be moved to a different school. Parents are encouraged to mediate, if appropriate, before making an application for a child arrangements order.
Moore Barlow can assist with applications for a child arrangements order and guide you through the process from start to finish.
Why Moore Barlow?
As you can see, there are many aspects to think about when it comes to your child’s future after the end of your relationship. Our legal advice and support will help make sure you and your ex-partner fulfil your responsibilities; most importantly, it will also help ensure your child finds some certainty and security in a very unsettling time.
As one of the leading family law firms in the UK, we’ve amassed a great deal of experience in all aspects of helping couples to reach agreement about their children. For example, we can provide specialist help in mediation which, like all amicable routes to settlement, is always a better option for your children.
However, if you have to go to court, we will ensure you complete all the necessary forms and paperwork correctly. We’ll also use our full knowledge of the law and skills in representing you, to secure crucial decisions, such as whether your children will live with you, in your favour.
We have offices in London, Richmond, Southampton, Guildford, Lymington and Woking and offer specialist support with family law issues to clients nationwide. Contact Moore Barlow to find out how we can help your case.
Cohabitation and Children FAQs
Can I claim on my partners’ house?
When a couple are unmarried, the financial claims are more limited. Usually, the first place to look is at the ownership of the property. If you appear as a joint owner at the Land Registry on the title deeds then it will be very difficult for your ex-partner to suggest that you do not have a claim.
What happens when your name is not on the title of the property?
The legal arguments become a little more complicated. The detail of how you arrange your financial affairs between you is likely to become very relevant. It is often the case that the person who is not on the title deeds will often contribute money towards the mortgage or pay for renovations or other improvements to the property. These scenarios can give rise to a claim over a property. If there are children involved, there may also be separate claims that can be made on behalf of the children against a former partner. The law in this area is particularly complicated and a specialist assessment of your particular circumstances is recommended.
Does a common law spouse exist?
If you remain unmarried during your relationship there are no additional rights that you acquire regardless of the length of time that you have been together. In short, common law husband or wife this is a myth. This only changes in the event that you have children between you. If there are minor children then financial claims can be made on their benefit.
Do children always stay with mum?
Where there is a dispute over where the children will live following separation, there is no law or legal bias that means that children always stay with their mother. If the arrangements for the children cannot be agreed then most couples are encouraged to try Mediation. However, if this breaks down or one parent feels they should have ‘custody’ of the children then the decision can be made by a Judge. Unless there are some serious safeguarding issues, a Judge is likely to make sure that children spend quality time with both of their parents. The best interests of the children are going to be the most important factor.
Can the children decide who they live with?
Children under the age of 18 cannot legally make the decision to live with one parent or another. If the parents cannot agree who should have ‘custody’ of the children then the matter will need to be decided by a Judge. As part of the court process, the Judge may want to understand the views of the child or children involved and who they say that they would like to live with. The younger the child, the less likely the court are going to seek their views. However, the views of older children can be taken into account. A child’s views, no matter how old they are, are never decisive, just one factor to be taken into account by a Judge when making the ultimate decision. Children do not always know what is best for them and courts are aware that sometimes parents try and influence a child’s decision about where they want to live.