When a marriage or civil partnership breaks down, one of the hardest and most important things to decide is how children are raised and cared for – and who by. The legal power to decide whom the children will live and spend time with was previously referred to child custody rights, but is now more commonly referred to as child residence arrangements. This helps make the process feel less combative between the divorcing partners and focuses instead on where the children will live – and what works best for them.
Who is the primary care giver?
In most divorces, one parent will normally end up being the main person with whom children will live. Even if they split their time more or less equally between their parents, one household will normally contain their primary carer. This is usually the adult who takes the children to school, cooks for them, buys what they need and carries out the main parenting tasks. This person is seen as having primary carer rights when it comes to making decisions on behalf of their children. Primary carer rights can be awarded to either the mother or the father, as deemed most appropriate. Neither parent has automatic rights based on their gender – every case will be considered individually.
Sometimes, in more amicable or straightforward separations, decisions are made in consultation with the other, non-primary-carer parent. Otherwise, a family court may need to get involved to aid resolution. It is not always the person with the most money or resources who is awarded primary carer rights. Rather, child maintenance agreements exist to clarify who pays what and how frequently in a separate process. The relationship between the two parents is also assessed when considering primary carer rights. Often, the parent who can show the most willingness to work with the other to co-parent effectively will be awarded what used to be known as child custody rights.
Courts will look at other aspects too when looking at who gets primary carer rights. These can include the ability to provide a loving, stable and safe home setting and a willingness to prioritise the child’s general wellbeing. They will also assess the strength of the child-parent bonds already in place in order to protect the mental health and ongoing happiness for children who get on better with one parent than the other. Above all, they courts will always put the children’s needs above the parents’ wants when ascertaining how to award primary carer rights – and to whom.
What are primary carer rights?
Simply put, a child’s primary carer takes on the main responsibility for the wellbeing and raising of the child until they reach adulthood. This includes ensuring they have enough money and resources for a happy, safe and comfortable life. Children will usually live with their primary carer and use their home as their official address. They usually spend more time with them too, especially during the week when school or other educational routines take priority.
The primary carer normally takes the lead on key decisions such as where and how to educate children, where they will live, whether or not they will be encouraged to follow a religion and any major medical decisions. Family courts will place a great deal of emphasis on the requests and preferences of the primary caregiver, particularly if they can prove that what they are proposing is in the best interests of the child. Where there is conflict between the two parents around a decision, the court will aim to mediate, listen to all points of view and come to the best outcome for the children.
The primary caregiver cannot, however, block the other parent from having access, unless the court decides there is good reason to do so, such as in the case of violence, abuse or extreme neglect. Denying a child access to one of their parents is, in most cases, considered harmful and not allowed by the family court. The non-primary caregiver can, however, apply to have the primary carer rights removed from the other parent in extreme cases where they are genuinely fearful for the children’s safety, health or wellbeing. Again, situations like these are generally considered on a case-by-case basis.