The Right to Raise Children Upon Divorce: Legal Considerations and Custody Options

1. The Right to Raise Children Upon Divorce: Legal Considerations and Custody Options

This time in your life is so emotionally charged that it's no wonder you forget how your child feels. It is essential for any child to be reassured that both parents love and care for them despite marital problems and that these parental responsibilities (see below) will continue through all stages of separation, separation and beyond.

2. Most parents agree

Most parents agree about the arrangements for children although difficulties do arise frequently, especially when matters of finance are also in dispute. The law considers that these voluntary arrangements between parents are more likely to succeed in the long run than those imposed by the courts. It is therefore generally understood that the courts will not intervene unless it is in the best interests of the child. Your child, like the courts, would prefer you both to do your utmost to put him first, to see things through the eyes of your child. Mediation may be offered as an alternative to the court process and details are given below.

3. When filing for divorce

When filing for divorce, a Statement of Arrangements has also to be filed, giving details of the proposed arrangements for the children. If these are agreed by both of you, the court is unlikely to interfere although you can ask for the court to help at any time. If agreement has not been reached, the Judge may ask for you both to attend a hearing to see if you can agree. Mediation may again be advised. Reports could be requested and further meetings probably with the children in attendance at a CAFCASS (court welfare) office or at home. See below for further details. This is best discussed with your solicitor.

4. What does the law say?

The Children Act 1989 states that the welfare of children is the most important matter. The old word “visit” has been replaced by contact. These may include contact by mail, telephone, and physical visits. “Custody” has been replaced by residency. The law describes parental responsibilities rather than parental rights. If you are married at the time the child is born, you will both have parental responsibility for the child. A father who is not married to the child's mother at the time the child is born automatically has no parental responsibility for that child. But it is possible to obtain it by agreement with the child's mother or by applying to the court. He can also get it by marrying the child's mother after birth.
When a child's parents are married at the time the child is born, the father automatically benefits from PR as well as the mother and therefore has the right to participate in decision-making. If the parents later get married, the father will get PR at that time. The number of unmarried couples with children together is increasing: statistics show that more than 40% of children are born to unmarried parents. In this situation, the father does not have RP for the child, unless it is specifically purchased. RP can always be purchased with one of three:

For children born after December 1, 2003, if the father declares the child's birth with the mother and is named on the birth certificate, he or she shares the RP with the mother;
Parents can enter into a child custody agreement – ​​a formal document signed by both parties and filed with the court;
The father can apply to the court for a parental responsibility order. To obtain an order, the father must demonstrate to the court that he has a sufficient level of commitment and attachment to the child. Once the father has been granted PR, both parents have the right to participate in the decision-making process. Obviously, in an ideal world, decisions should be made by mutual agreement, but where this is not possible then either party has the right to go to court to resolve the disputed issues in court. .
Parental responsibilities
Parental responsibility means you are both responsible for the following, but this list is by no means exhaustive:

Protect and care for your children
Name your child - choose a school
Ensure children go to school from 5 to 16 years old
ensure they receive medical treatment
appoint a guardian to act after death
apply for a passport
represents the child
decide where he will live
choose the child's religion, etc.

5. Parental responsibility

Parental responsibility means you are both responsible for the following, but this list is by no means exhaustive:

Protect and care for your children
Name your child - choose a school
Ensure children go to school from 5 to 16 years old
ensure they receive medical treatment
appoint a guardian to act after death
apply for a passport
represents the child
decide where he will live
choose the child's religion, etc.

6. What about money?

One parent is financially responsible for the child until the child turns 17 or completes full-time education, whichever is later. There is no “express leave” (end of financial support) between parent and child. That's the law. The child's father (or mother) must pay this support whether there is contact or not. These two issues are completely different, but in reality maintenance disagreements sometimes lead to communication problems. Conversely, a father who is in frequent contact will be more likely to pay child support regularly. Try to separate these two questions and discuss them at different times. For more details about getting financial support for your child, please see our Finance section.

7. Will continued abuse affect the children?

If violence or psychological abuse caused you to break up, this behavior may continue and even get worse. Controlling and abusive behaviors are also likely to affect the child at the time of exposure and afterward. Your physical and emotional safety is important to your child's health. Please read our article on domestic violence and find out where you can get expert advice 24 hours a day and stay safe.

8. Can we avoid going to court about the children?

If under normal circumstances you cannot agree on a communication arrangement that puts the children first, compromises, maintains some stability, allows your child to continue to love both parents then mediation may be the best option. This is much better than “going to court,” which can be expensive, time-consuming, and painful for all involved.

9. What is mediation?

The mediator is a trained professional who listens to the wishes and concerns of both parents and tries to help both of you reach an agreement about communication. Mediation is also used in disputes related to the child's residence, “residency” and other issues such as finances and property.

10. What if it is a violent relationship?

Again, if you are in fear of violence, this is not the course for you to take.

11. What if mediation and talking fail?

If mediation and all other communications fail, including talking and listening to your child, you may need to consider legal action, but this will not bring about an immediate solution. .
Again, the courts base their decisions on the Children's Act, which emphasizes the welfare of children. The court will only make an order if it is in the best interests of the child.
What is needed is not your “access” to the child; That's what's best for the child.

12. The Courts consider the following factors:

• the child's feelings and desires, based on the child's age and understanding
  children's physical, emotional and educational needs
  the likely impact of any change in his circumstances
  age, sex, origin and any other characteristics the Court considers relevant
  any harm that the child may have suffered or may suffer
  the ability of each parent to meet the child's needs (this may include other people involved).

13 . You will need a solicitor

This legal process requires a family law solicitor. It may become costly unless you are able to receive funding from the Community Legal Service (Legal aid). Details about how to find a family solicitor and other information are in our Legal section. Suggested books are in our Books section. Have you read Children/Teenagers/Parents sections? These may help you both come to some understanding and agreement. If you haven't already read through Emotions and Health sections, these may help you to understand each other's position and concerns. Always look for common ground and try to see things through the eyes of a child.

14. What if we can't agree where the child should live?

It may be worth remembering that most families do not involve the courts and the courts generally consider that it is the right of each child to have a relationship with both parents.
It is rare for families to disagree about where a child will live - this is referred to as Residence. The court would consider amongst other things, the following:

• the working parent who must arrange childcare will not be preferred to the parent at home - continuation of the status quo
• maintenance of family contacts
• 'normal' family life
• permanence and stability
• the child's wishes when able to express these in a mature and balanced way
• adequate mothering especially for young children
• avoiding separating siblings

What else can the courts do?
The courts can also deal with specific issues as well as contact and residence orders.
A 'Specific Issue Order' could be sought to decide where a child will go to school or to decide on medical treatment. There is also a 'Prohibited Steps Order' which can stop something from happening. One example would be to stop one parent from taking the child abroad. A solicitor's advice should be sought. Please contact us.

What happens at court?
This will involve CAFCASS, the Children and Family Court Advisory and Support Service for England and Wales. It is a group of professionals, answerable to the Lord Chancellor, who provide advice to the courts about the wellbeing of children and their families. You are both usually requested to attend a meeting with the Judge four to ten weeks after applying for a court order. Your solicitors generally attend too.

CAFCASS and the court welfare report
A CAFCASS officer is normally in attendance too but practices vary from court to court. The purpose of this meeting is for the court to ascertain whether there is any chance of you coming to an agreement. If not, it is normal practice for the Judge to request a CAFCASS (court welfare) report. This can be a lengthy document and is only drawn up after he meets the parents together or individually and he meets with the child/children either on their own or/and with a parent/s.
He can also check whether their schools have any concerns. He can also check with doctors, Social Services, the police etc.; Visits may also be arranged at home. Although you will be dealing with professional people, this can be a very emotional and traumatic time.

Try to agree yourselves
Throughout the whole process, you will be encouraged to come to an agreement that is in the best interests of the child. The hearing would then be arranged for perhaps three to six months later if you haven't already found a solution and the Judge would then deliver his decision which is often in agreement with the welfare report's recommendations. He could also delay his decision for a further period of time and order another hearing in the hope of agreement. An appeal against the decision could also be considered. This could turn out to be a costly and lengthy procedure which could add to the stresses of the divorce and diminish your ability to co-operate as responsible parents.

Please try to remember this
You should both work towards establishing a parenting agreement that will benefit your child. This is not about any other disagreement you may have. Although you may think that 'fighting' over your child shows your child how much you love him, this is not the case. A child, like the courts, will be waiting for you to co-operate together. Arrangements which are agreed between you are more likely to be honoured.

Time is a healer; things will get better if you try to stop hurting each other. Try to do something constructive for your spouse, something that could build trust and co-operation. Stand back and reflect. Remember to see everything through the eyes of your child.

15. Why should professionals use ACC Law Firm's Children Upon Divorce service ?

• Legal Expertise: ACC Law Firm specializes in family law, including divorce cases involving children. Professionals can benefit from the firm's legal expertise and knowledge of the specific laws and regulations governing child-related issues in their jurisdiction.

• Child-Centered Approach: ACC Law Firm prioritizes the best interests of the children involved. The firm can help professionals navigate divorce proceedings with a focus on ensuring that the children's physical, emotional, and developmental needs are met.

• Child Custody and Visitation: The firm can assist professionals in negotiating child custody and visitation arrangements that are fair and in the children's best interests. This includes developing parenting plans that outline custody schedules, holiday visitation, and communication between co-parents.

• Child Support: ACC Law Firm can help professionals understand their rights and responsibilities regarding child support. The firm can assist in calculating child support payments and ensuring that they comply with legal requirements.

• Mediation and Alternative Dispute Resolution: In cases where disputes arise regarding child-related matters, ACC Law Firm may offer mediation and alternative dispute resolution services. This can help professionals and their spouses reach mutually agreeable solutions without the need for lengthy and adversarial court proceedings.

• Modification of Orders: If circumstances change after the divorce, such as a parent's relocation or a change in financial circumstances, ACC Law Firm can guide professionals through the process of modifying child custody, visitation, and child support orders to reflect the new situation.

• Enforcement of Orders: ACC Law Firm can also assist in enforcing court orders related to child custody, visitation, and child support, ensuring that both parents comply with their legal obligations.

• Protection of Parental Rights: The firm works to protect professionals' parental rights throughout the divorce process, ensuring that their voices are heard and that they have a say in important decisions related to their children.

Q&A

Question 1: What is child custody in a divorce?

Answer 1: Child custody refers to the legal and physical rights and responsibilities of parents for the care and upbringing of their children after a divorce. It involves decisions about where the child will live, who will make important decisions for the child, and visitation arrangements.

Question 2: How is child custody determined in a divorce case?

Answer 2: Child custody is typically determined based on the best interests of the child. Courts consider factors like the child's age, health, and well-being, the parents' ability to provide a stable environment, and the child's existing relationship with each parent. Custody arrangements can vary, including joint custody, sole custody, or shared custody.

Question 3: What is child support, and how is it calculated in divorce cases?

Answer 3: Child support is financial assistance provided by one parent to the other for the care and upbringing of their child. The amount of child support is often determined by state guidelines, taking into account factors like each parent's income, the child's needs, and custody arrangements.

Question 4: Can child custody and support agreements be modified after a divorce?

Answer 4: Yes, child custody and support agreements can be modified if there are significant changes in circumstances. For example, if one parent's income drastically changes or if a parent relocates, it may be necessary to revisit and modify the original agreement to ensure it continues to serve the child's best interests.