Splitting up with your partner is never easy. Divorce involving children and custody can be one of the most stressful events in a person’s life. In such circumstances, making suitable arrangements for the ongoing care of your child or children, is likely to be the number one priority.
Although every situation is unique, there are common factors that can help shape custody agreements. In all cases, having a clear view of the needs of the child, and putting those needs first, should be at the forefront of any decisions. This can be difficult, especially in the case of an acrimonious break up. Many couples are able to agree on suitable parenting arrangements, but others will need help. This may come in the form of mediation, family law solicitors’ advice, or in extreme cases, intervention from the courts.
It is important to stress that even where legal support is applicable, it is rare for couples to end up in the embittered child custody hearing much loved by TV dramas. In disputed or more complex cases where legal support is most applicable, legally binding agreements can often be made; with the help of a child custody solicitor and without having to make a personal court appearance.
Topics to be answered in this article
Childcare arrangements – the basics
There are three main areas of a childcare agreement.
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Where will the child / children live? (who gets custody?)
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Who (and how) will provide and pay for the things the children need?
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When and how will children have access to their parents and wider relations?
Factors, such as the age and needs of the child, should be taken into account. Older children may have strong desires as to which parent they wish to live with, however it is important to ensure they have appropriate access to both parents, where this is possible. If there are issues of domestic violence or abuse, legal advice and suitably enforced agreements are likely to be required.
Where will the child(ren) live?
It is not always obvious where the children will live after a separation. Working out what is best for the children, as opposed to what may suit either parent or carer, can be hard. Often, ‘shared care’ is needed, where children stay with one person for part of the week, and with the other for the rest of the time. Work often shapes such an agreement, especially if school drop-off or after school care is an issue. Consideration needs to be given for school holiday cover as well. Physical space can also be a factor, for example providing bedrooms, play areas and garden space.
It is important that the needs of the children are put first. Splitting caring duties down the middle, might seem fairer to each parent, but may not be best for the child. Mid-week versus weekend caring might also be problematic, with one parent covering more stressful periods, whilst the other gets more ‘fun’ time. Older children, within reason, should have their wishes taken into consideration. Try to ensure children have access to both parents on a regular basis. This is especially important if the child will be living with one parent for the majority of the time.
There is no ‘correct answer’ to the question of where a child should live. Put their needs first and make sure the decision is based on logic rather than emotion. Document the initial agreement and try to stick to it as much as possible. Share the agreement with older children if appropriate. Such an agreement can be altered at a later date if required.
Who (and how) will provide and pay for the things the children need?
The law states that all parents (parties with parental responsibility) are required to pay for the things their children need until they are 16 years of age, or 20 if they are studying for their A levels (or equivalent). The government provides a Child Maintenance Service for parents who have not been able to make a private agreement about how their child’s living costs will be paid. A negotiated agreement based on each party’s financial status, is very much preferable if one can be agreed.
As well as covering day-to-day living costs, money is needed for things like clothes, entertainment, travel, school trips, pocket money etc. An agreement might involve one parent paying for certain costs, for example household bills, whilst the other pays for school costs or vacations. Another option is to calculate a likely total cost, and agree a split of those costs between the two parties. Agreement should be sought as to how and when payments will be made. Gingerbread, the support group for single parents, offers an interactive tool that may be of use.
Legal support or a child custody solicitor is useful where one partner is reluctant to meet their fair share of financial responsibilities. A legally binding agreement, negotiated in the early stages of a separation, is often sought. This may provide the best outcome for the children, saving time, money and angst in the longer term.
When and how will children have access to their parents and wider relations?
Access to both parents and associated extended family is important for the ongoing welfare of the child. Where a child will be predominantly living with one parent, an agreement should be made as to when the other parent can have access, and what form the access takes. Negotiating access in the heat of a recent divorce or separation, can be problematic. Mediation or legal advice may help if it proves impossible to come to an amicable agreement. As always, the needs and welfare of the children should be the priority.
Grandparents can provide valuable support and continuity for the child, as well as being a source of childcare and assistance. Where the child will be living with one parent, consideration should be given to allowing access to grandparents from the ‘other side’ of the previous relationship. As the law stands in the UK at present, grandparents do not have an automatic right to contact with their grandchildren. It may be possible for a grandparent to request leave to apply for a court order, if it can be shown that they have a meaningful relationship with their grandchild, which significantly benefits the wellbeing of the child. Good legal advice is essential if this route is to be pursued.
In some situations, one of the separating couples may not have legal parental responsibility, even though they have been acting as a parent for many years. Without this, there is no automatic right for ongoing access to the child. In circumstances where although the relationship has failed, ongoing access to support and care for the child is desired, it is possible to sign a parental responsibility agreement or apply to the court for an order. This can be a useful option, helping to ensure both ongoing support and access, providing the best welfare for the child.
A legally binding agreement or not?
In the case of an amicable separation, or one where a good working relation remains between the parents, whilst a written agreement is highly recommended, there is no need for it to be legally binding. In more complex situations, or where there is perhaps doubt over the sincerity of one of the parties, a legally binding agreement is advisable.
These can be drawn up by a solicitor and agreed in a court of law, without the need to personally go to court. Such an agreement gives both parties the support of the law, should the agreed support structure for the children fail to be adhered to. A legally binding agreement can help ensure the best long-term support for the child in difficult circumstances.
Providing the best support and care for your children, during the stresses of a separation, is never easy. There are many avenues for help and assistance, to support you and the children through this difficult time. If you think that legal advice or support may be of value, Goughs have significant experience in this area and can provide help and advice as required.
If you would like to find out more, please contact our family team here. We are here to support you.
