It can be a difficult and emotional time when you separate from your partner and have children. Amongst all the emotions and upset, it is of the utmost importance that the futures of all children from the union are firmly agreed upon and provided for.
The term ‘child custody rights’ is used to cover the agreement about where the children will live and who will care for them and make decisions about their wellbeing. However, the phrase was formally replaced in England and Wales under the 1989 Children’s Act with the less ‘possessive’ idea of parental responsibility, residence, and contact. Custody of children is now referred to as ‘living with’. One party becomes the ‘resident parent’, and the other is the ‘non-resident parent’.
What happens in a child custody rights case?
In a legally binding decision, family courts in England and Wales will determine the arrangements around all of the above. They will take each party’s wishes and circumstances into account as much as possible. If the child is old enough and is deemed to have sufficient capacity to express their views, their wishes will also form an essential part of the process.
Children will typically live with their mother or father with the day-to-day caring shared between the two wherever possible. Major concerns around this could affect who the child gets to live with and how often they see the non-resident parent. Family courts will not look kindly on parents seeking to sabotage their child’s relationship with their other parent.
The child will usually spend time with both parents regularly in an even or uneven split, depending on each case. In particular, weekends and holidays are carefully divided so that the child can enjoy quality free time with both parents and spend time there during the week.
The resident parent need not be the one with the highest income. This is because the awarding of child maintenance payments will help even out the income from both sides and allow the primary caregiver to fund what the children need to live comfortably.
Who can make decisions about the child?
The Children’s Act of 1989, which removed the term ‘custody’, also gave both parties more of a say in the child’s upbringing than before. Now, as part of what was called a child custody rights case, both parties who were married to or in a civil partnership with their child’s other parent or who have their name on the birth certificate have an equal say in major decisions. This includes issues around schooling, health, religion and more.
The resident parent is usually regarded as the primary caregiver and, therefore, more likely to have the information to hand to enable them to make key decisions. However, if possible, it is better to involve both parents in decisions to avoid problems further down the line.
The intention is that all decisions will be made in the child’s best interests at heart. Suppose both parents live nearby and remain amicable after a split. In that case, shared care is available where parents plan more of their daily life and more significant choices together, rather than seeking the help of the courts to resolve any disputes. This approach helps retain more stability for the child and lessens the chance of harmful animosity.
Family solicitors can help separate partners achieve this ideal through mediation, advice and support. The courts will step in for decisions that cannot be reached through shared care or mediation. A judge will bring the issue to a close by having the final say after hearing the arguments on both sides.
It is not the case that mothers have more child custody rights than fathers – both parties have an equal say in England and Wales. One caveat to this is that the mother automatically gets parental responsibility rights when a child is born. The father will only receive the same if he is married to the mother at the time of birth or is named on the birth certificate.
More information is available from the UK Government’s website. You can also speak to a child custody rights expert at Shortlands Solicitors for advice. Or you can make an appointment to discuss what you want for your children in the case of a divorce or separation.