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Deciding which parent the child will live with is often one of the most contentious and emotionally charged issues in a separation and divorce.

What is child custody?

Child custody refers to with whom a child (or children) shall live with. Following the parents’ separation, it is common for the child to reside predominately with one parent. This provides stability, routine and consistency for the child as they grow up. However, there are some circumstances in which the child will reside with both parents. This is known as a “shared care” arrangement. It is important to remember that each family is different and therefore the type of arrangement put in place may vary between families.

If your child lives with you, you are often known as the “resident parent”, and the other parent is known as the “non-resident parent”.

What if me and the other parent cannot reach an agreement?

When parents separate, they must decide their child’s living arrangements. Parent’s may take many factors into consideration when making this decision. This decision may coincide with the decision as to what to do with the family home. It many cases, separated parents will often be able to reach an agreement that is in the best interests of their child.

However, some separated couples may struggle to reach an agreement. In these cases, you have the following options:

Family mediation

You can attend mediation with a trained and independent mediator who can help you and the other parent work out an agreement about your issues. Mediation is beneficial in helping you resolve any issues in dispute without going to court. It allows you to negotiate future arrangements for your child with the assistance of a neutral professional third party and attempts to keep communication amicable.

Negotiations between solicitors

You can instruct a solicitor to represent you in your child matter. A solicitor will contact the other parent or their solicitor and attempt to reach an agreement by way of negotiations.

Court proceedings

If negotiations and mediation are not successful, you do have the option of making an application to Court. The type of application depends on what you are asking the Court to do. However, in most cases, a parent will be applying to court for a Child Arrangements Order. A Child Arrangements Order is a Court Order made by the Family Court which sets out with whom the child shall live with, and how they will spend time with the other parent. It can also set out arrangements for any shared care arrangements.

What happens if I apply to court?

After you have made an application to the Family Court for a Child Arrangements Order, the Court will make a timetable for how your case will proceed. The Court will often list the case for a first hearing.

The Court will also ask the Children and Family Court Advisory Support Service (CAFCASS) to undertaking background and safeguarding checks on both parties to see if they are known to the police or local authorities.

What do the Court consider when deciding the child’s living arrangements?

The Court will consider a list of factors set out in the Welfare Checklist under section 1 of Children Act 1989. The factors are as follow:

  1. The ascertainable wishes and feelings of the child concerned in light of their ages and understanding;
  2. The child’s physical, emotional and educational needs;
  3. The likely effect on the child of any change in their circumstances;
  4. The child’s age, sex, background and any characteristics of theirs which the court considers relevant;
  5. Any harm which the child has suffered or is at risk of suffering;
  6. How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs; and
  7. The range of powers available to the Court under the Children Act 1989 in the proceedings in question.

Ultimately, the Court will be concerned with making a decision that it considered in the best interests of the child.

If my child does not live with me, do I still have a say in the important decisions in the child’s life?

Parental responsibility is defined under section 3(1) of Children Act 1989 as being:

“all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

In practice, this means that when important decisions about the child’s upbringing must be made, all those with parental responsibility for the child can have an input. These decisions can include decisions in relation to the child’s education, consenting to medical treatment, consenting to taking the child abroad, religion and various other important matters.

If you have parental responsibility for the child, then you are able to exercise your parental responsibility and participate in these decisions.

Day to day decisions are usually taken by the parent with whom the child lives with, without interference from the other parent.

What if me and the other parent disagree on certain decisions?

If separated parents are unable to reach an agreement about a decision concerning the child, it is expected that they try their best to reach an agreement amicably. They can attempt mediation or instruct a solicitor to negotiate an agreement. If this is unsuccessful, a parent can make an application to the Family Court for a Specific Issue Order and/or a Prohibited Steps Order.

Contact Us to Learn More

Determining a child’s living arrangement in a divorce or separation involves careful consideration of multiple factors, all centered around the best interests of the child. By understanding the factors that influence Court decisions, parents can better navigate this challenging process. For more detailed guidance on child custody and other family law matters, visit Specters’ Family law services. If you need help with a custody dispute, contact us today to schedule a consultation.

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Article written by Nadia Aksoy, Trainee Solicitor at Specters Solicitors