Bringing up children in the aftermath of parents separating, can be hard. In some child custody cases it is common for the initial childcare arrangements to need amending after a few months, as the realities of the post-split world emerge. These changes might be due to work patterns of the parents or providing support for a child’s school or hobby.
For many cases in family law, it is possible for the parents to agree and accommodate these changes in an amicable manner, putting the needs of the child first. Unfortunately, this may not happen so what can you do when your existing child care arrangements are not working?
Topics to be answered in this article
Your rights as a parent
Whilst the law gives the parent (or specifically anyone with parental responsibility) some legal requirements and rights, it does not automatically guarantee access to a child. The law is focused on the welfare of children. As such, decisions on contact are based around the needs and welfare of the child, not simply the desires or wishes of a parent.
The law is also clear that in most circumstances, the welfare of a child is best served when they have access to both parents. When thinking about child care arrangements that are not working, it is important to differentiate between what ‘not working’ means for the child and the parents. The law is focused on the former, not the latter.
Resolving issues of childcare
There are four main options for resolving post-split childcare arrangements:
Discussing and agreeing a solution with your ex-partner
Using external mediation to arrive at a solution
Legal negotiation (through child custody lawyers) to come to an agreement
Going to court
The law expects that attempts to resolve any issue will have been made, before resorting to court action. The exception is where there may be urgent issues such as child abuse.
1. Negotiating a revised agreement
By far the best option where possible, is to discuss and agree a solution with your ex-partner. The government provides a useful guide with some tools that may help. Working out specifically what is going wrong, why it is happening and how it might be resolved is a good start. Remember, it is the needs and welfare of the child that is the focus. Reaching agreement with an ex-partner may be helped by choosing a neutral location for discussions. Try to focus on practical childcare issues, rather than the perceived rights and wrongs of the original split.
2. Professional Mediation
Where it is not possible to reach an agreement between the ex-partners, professional mediation is the next step. This involves working with an experienced mediator, to arrive at a negotiated agreement. The mediator will take into consideration any initial agreement, as well as the reasons it may have failed, or need amending. The final agreement is not legally binding, although a solicitor will be able to make it so, if required. There is a cost involved for professional mediation, although financial help may be available through the Family Mediation Scheme.
3. Legal negotiation
In situations where face to face negotiation is not possible, even with the support of a mediator, legal negotiation is an option. Both parents appoint a solicitor to represent their interest and the solicitors negotiate a legally binding agreement on the parent’s behalf. A good family law solicitor will have a wealth of experience and will be able to negotiate the best solution for the welfare and care of the children, as well as taking into consideration the needs and requests of the parent they are working for. It is not uncommon for legal negotiation to be required if an initial child care arrangement has failed.
4. Going to court
If you reach the stage where renegotiating an amicable agreement, including the use of mediation, has failed, going to court is the likely outcome. You will need to apply for a court order and decide if you wish to represent yourself or seek the help of family law solicitors. At the first hearing, the judge will want to establish if there is a reasonable chance of reaching an agreement without the need for a court judgement. Your initial child care arrangements are likely to be discussed. If a mutual renegotiation is not possible, the judge may seek further information to help decide what is in the best interest of the child. Ultimately, a binding legal decision will be made about the contact each parent can have and where the child should reside.
Court action may also be applicable where there are concerns about the welfare of a child. In such circumstances, the process can be expedited.
Taking a case to court is not a trivial exercise and legal advice and support are likely to be of significant benefit. Legal aid may be available to help with the costs.
A working solution
Whichever route is taken, the aim is to provide the best support and welfare for the child or children. Issues that may have caused the relationship to break down, such as infidelity, are not good cause to try and deny contact to a child. A court will not stop a parent from having reasonable access to their child unless there are significant reasons to be concerned about welfare. Keep this in mind as you work to come to a beneficial agreement. A family solicitor can provide one-off or ongoing advice, to help arrive at a suitable outcome.
Here at Goughs we have a dedicated Family Support team and we would be delighted to speak with you and see if we can help. Book your free initial consultation today.