Children and custody in divorce and separation cases
The break-up of a marriage or other relationship can be distressing, especially where the couple have children.
The main issues that need to be addressed are:
- With which partner each of the children will make their main home
- How much time each child should spend with each partner
- How much child maintenance should be paid, and by whom
Unless the couple instantly reach a mutual agreement on all of these issues, then an attempt is usually made to resolve these matters by mediation. Here a professional mediator, who is an independent third party, will meet with you and your partner to try and find common ground and allow you to arrive at an amicable solution. In most cases, an attempt must be made at settling the matter via mediation before the courts can get involved. There are only limited exceptions to this rule, such as when the relationship was an abusive one.
If mediation fails, it is likely that you will need to apply for one or more types of court order. Applications for court orders can be made by either parent of the children in question. Other people who may have an interest, such as grandparents, need to get the permission of the court in order to make an application for an order.
The main types of order you can apply for are:
- A child arrangements order – covering where the children will live, how much time is spent with each parent and what contact children can have with each parent
- A specific issue order – covering one specific question about a child’s upbringing, for example this might concern which school they should attend
- A prohibited steps order – this is used when one partner wants to stop the other partner from having influence in any area of a child’s upbringing
Once an application for a court order has been made, it is normal for both parents to be asked to attend a hearing in a family court. Here the judge will try and find common ground between the two parties, and may instruct the parties to return to mediation. The interests of your children will be the judge’s first concern, and the application for any of the above orders will only be approved if the judge believes it is in a child’s best interests.
Any decision made by a court might be based on:
- The child’s wishes
- The child’s physical, emotional and educational needs
- The effect a significant lifestyle change could have on the child
- Whether the child is at risk of harm
- The parents’ capabilities – is one partner for example impaired by alcohol, drugs etc?
If you require advice on any of the legal issues associated with custody of children following divorce or separation, then we are here to help.