For most parents navigating divorce, ensuring the well-being of their children is paramount. Fortunately, the legal system aligns with this perspective. However, when it comes to the question of “who gets custody,” the answer is that no one does, and this guide explains why.
When parents divorce or separate, determining where the children should reside, how they will be cared for, and the frequency of contact with the other parent becomes a primary concern. The term most commonly used, especially in the media and popular culture, is “who gets custody.” However, in legal terms, custody no longer exists. Courts do not grant custody to one parent over the other. Instead, children have the right to maintain a meaningful relationship with both parents, although the specifics of how this is implemented will vary for each family.
Ideally, arrangements regarding where the child lives and visitation with the other parent are settled amicably by the parents. When agreements are reached without conflict, involving lawyers or the courts is unnecessary. However, if parents cannot reach a consensus, they often turn to specialised family lawyers like DLS Solicitors for assistance in negotiating arrangements or applying through the courts for a child arrangement order. Either parent can apply for this order, which determines the child’s living arrangements, time spent, and contact with both parents.
Where will the children live after divorce?
When a couple decides to separate, it is common for one party to move out of the family home, though this is not always the case. If the property is jointly owned, both the husband and wife have the right to reside there.
In some cases, it may be beneficial for the children to remain in the family home to maintain a sense of normalcy in their routine. This typically involves them residing with the parent who remains in the house, which historically has often been the mother, although this is less conventional nowadays.
Financial constraints may make it impractical to retain the family home, leading both parents to establish new residences. The parent who has the children in their care for a greater amount of time may prioritise their housing needs. Alternatively, if the children split their time between both parents’ homes, housing requirements are generally equalised. Regardless of the scenario, it is important for children to have a comfortable and stable home environment with each parent, whether they reside there full-time, part-time, or during weekends and holidays.
Assuming both parents are committed to remaining involved in their children’s lives, logistical considerations allow for it, and both prioritise the children’s needs, many separating couples can swiftly determine living and visitation arrangements without external assistance. However, a family solicitor can always provide guidance on available options if needed.
In contemporary family law, there is a general presumption in favour of shared parenting. While this principle is not strictly mandated by law, it often serves as the initial consideration when courts are tasked with resolving issues related to a child’s living arrangements and contact.
Assuming both parties are responsible and engaged parents, it is presumed that children benefit from the involvement of both parents in their upbringing, both practically and legally. However, this presumption does not dictate where the children live or the specific frequency of care provided by each parent.
In reality, logistical challenges can make achieving a straight 50/50 split of parenting time difficult. Additionally, a court may determine that such an arrangement is disruptive to the child’s well-being and therefore not in their best interests. Each case is evaluated based on the unique circumstances to ensure that the child’s needs and welfare remain the top priority.
Reaching an agreement
Many parents are able to come to an agreement regarding the care of their children without the need for formal agreements or legal intervention. However, if this is not achievable, there are several options available:
- Negotiation: You can seek assistance from a third party, such as a family lawyer, to facilitate negotiations. The lawyer will represent your interests, provide legal advice, present your proposals to the other parent, and attempt to negotiate an agreement on your behalf.
- Mediation: Engage a family mediator to facilitate discussions between you and the other parent in an effort to reach a mutually acceptable agreement.
If mediation fails or is deemed unsuitable, you may need to engage a solicitor to assist in applying for a Child Arrangements Order through the courts.
Using the Courts: As a last resort, you can apply to the court for a Child Arrangements Order if all other methods have been exhausted. Before making an application, you typically need to demonstrate that you have made reasonable efforts to reach an agreement through other means. Once court proceedings commence, you will likely attend two or three hearings:
- Stage One: Your solicitor will prepare and serve an application to the court, initiating the first hearing. Often, the formal step of court involvement can prompt the other party to reconsider and potentially reach a resolution. The court will encourage both parents to reach an agreement during this hearing.
- Stage Two: If no agreement is reached at the first hearing, you will submit evidence forms detailing your case, circumstances, relationship with your children, and the behaviour of the other party. Additionally, a report may be prepared by an officer from the Children and Family Court Advisory and Support Service (CAFCASS). Based on all the information provided, CAFCASS will make recommendations to the court. Parents may either accept the recommendations or continue negotiations towards a workable solution.
- Stage Three: If no resolution is reached in the previous stages, a final court hearing will take place where all evidence is considered, and a judge will make a ruling on the specific arrangements for the child, including frequency of contact, among other details.
Maintaining open communication and a cooperative relationship with your ex-partner can be highly beneficial when children are involved, often avoiding the need for court intervention.
It is typical and advisable for parents to reach an agreement on child living arrangements outside of court involvement whenever possible.
