Divorce and Children

Divorce and Children

Residence issues are usually dealt with at the same time as divorce.  In the majority of cases, the parents will come to a private arrangement.  However, where this is not possible, the family courts will decide on the arrangements.

What is a residence order?

A residence order is a legally binding document issued by a family court which decides which parent the child will live with.  In some cases, joint residence orders will be given and the child will live with both parents according to the conditions in the residence order.

What factors are taken into account when making a residence order?

In the first instance, courts will decide whether both parents are actually capable of taking care of the children.  Any history of violence or abusive behaviour and habitual use of alcohol and drugs may mean the parent is considered unfit to take care of a child.  The central consideration will be the welfare of the child, how the child was cared for up until the time of the divorce and any other relevant factors (age of the child, the child’s wishes).  To aid the decision making process, the courts will usually appoint a Children and Family Court Advisory and Support Service (CAFCASS) officer.

What does a CAFCASS officer?

A CAFCASS officer will be asked to write a report based on any questions the court has asked the officer to answer.  Their job is to generally investigate the situation further and provide factual information regarding the child’s welfare.  They collate their information by visiting the homes of both parents and through interviews.  They owe a ‘duty of care’ to the child meaning they are charged with making sure the child is properly cared for.

Do mothers always get custody of children?

The courts will generally presume that a mother is best placed to take care of very young children based on a notion that mothers and children are dependent whereas fathers are seen to play more of an independent, participatory role.

With older children, however, there is less of a bias in favour of mothers and other factors, such as where the child would like to live hold greater weight.

How are maintenance payments decided?

As with most issues involving children, the courts will respect any private arrangements that parents have come to, and in the majority of cases, maintenance payments will be decided privately.  However, disputes can and do happen.   If this is the case, an application to the Child Support Agency can be made who will decide maintenance with reference to standard guidelines and financial circumstances of the non-resident parent.

My former spouse is not allowing me to see my children.  What can I do?

Disputes usually happen as a result of disputes over maintenance.  However, resident parents often fail to realise that maintenance payments are not a condition of contact.  They are two separate issues and as suggested above, the channel of legal redress for maintenance is through the Child Support Agency.  If you are being denied contact, you can apply to the court for a contact order.  Whether a contact order is issued and the conditions of it ultimately depend on the welfare of the child.  In most cases, courts will emphasise the value of both parents playing a role in their children’s lives.

FAQs about:
Divorce and Children

Divorce and Children

The process of going through a divorce can be an emotional rollercoaster for the spouses. However this can be sometimes nothing compared to what the children are going through, especially as they may well be the focus of the process as the parties try and agree what will happen with respect to childcare arrangements.

Child arrangements

Most parents come to an agreement by themselves without needing the intervention of the court when considering child care issues. The Courts recommend that voluntary arrangements to be made between parents are agreed with respect to child arrangements as these are more likely to succeed in the long term. Mediation may be substituted by the court process if the parties prefer. If the parties cannot agree custody arrangements then the Court will have to intervene.

Filing for divorce

At the time you file for a divorce a Statement of Arrangements relating to the proposed child care arrangements will be included. If no agreement has been reached mediation may be advised. Otherwise the judge will ask you to attend a hearing to see if you can agree on matters. In certain cases meetings will be attended by a court welfare officer at your home while the children are present.

What does the law say ?

The Children Act 1989 states that the child’s welfare is the most important consideration.

If the parents were married when the child was born, both parents will be considered as having parental responsibility for the child.

If a father was not married to the mother when the child was born, the father will not be considered as having parental responsibility. He can however acquire it later by marrying the mother later or with her agreement.

What about money?

Until a child reaches 17 a parent has financial responsibility for the child. If the child is over 17 then that responsibility continues until he or she leaves full-time education.

The father of the child must pay financial support whether or not there is any contact. Contact issues should be kept separate from financial.

What is divorce/family mediation ?

Mediation is guided by a trained professional who listens to both parents’ concerns and guides you to coming up with an arrangement about the contact. The issues that will be tackled will normally be related to where the children should live and any other issues relating to property and finance.

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