Should I apply for a child custody or contact order or delay? banner


Should I apply for a child custody or contact order or delay?

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It is a dilemma. No specialist children law solicitor will pretend that it isn’t. Should a parent apply to court for a child custody or contact order or delay? It is one of those decisions that an experienced children law solicitor can give parents guidance on when a parent is considering a child arrangement order application and debating about the timing of starting court proceedings.


If you have children law questions or need representation in a child custody or contact application or a specific issue order or relocation application the children law team at  OTS Solicitors can help. Call us on 0203 959 9123 or complete our online enquiry form so we can set up a skype, video conference or telephone appointment for you with one of our friendly and approachable specialist children law solicitors.

Applying for child custody or contact orders

Many parents assume that you can't apply for a child custody or contact order unless you have started divorce proceedings so they need to either rush and start divorce proceedings or wait to start a child arrangement order application when they are ready to commence their divorce petition. However, you can apply for a child arrangement order (the new style custody, residence, contact and access order) even if there are no divorce proceedings. This type of child arrangement order application is called a ‘freestanding application’. That means you don’t need to delay in starting a children law application just because divorce proceedings haven’t been started. However, there may be other good reasons why it is best to delay your children law application.

Do you have to go to family mediation before you can apply for custody or contact?

One of the biggest fears that parents have about going to family mediation is that it will just delay things and stop them from seeing their child or getting the contact they want for even longer. Children law solicitors are therefore often asked if a parent can skip mediation and go straight to court. The answer is that you can in some circumstances, such as:

  • There are immediate child safety issues. For example, you are concerned about the welfare of your child whilst in the care of the other parent as the other parent has alcohol or addiction issues or the child has unexplained injuries.
  • There was a history of domestic violence in the relationship and the measures the family mediator has suggested to alleviate those concerns (such as shuttle mediation) don’t work for you.
  • The application is urgent. For example, your former partner is intending to take your child overseas to live and they don’t have your agreement to the relocation and they haven’t applied for a relocation or specific issue order.

There are many other scenarios when you may want to skip mediation and go straight to court for a children order. The most common scenarios are:

  • You have left the family home and your ex won't let you see the children because they are upset because of the reasons for the relationship breakdown and angry with you.
  • You have formed a new relationship and your ex is upset about it and won't let you see the children.
  • Your ex has met someone new and you think your ex wants to cut you out of the lives of the children as they are now a ‘new family’.
  • You have separated and left the family home and whilst you are seeing the children your ex won't let you have overnight contact as your ex says the children are too young or too distressed by the separation and contact needs to be taken gradually.

In all the above scenarios it is totally understandable that you want to sort out the best childcare arrangements for your children as quickly as possible and that you may see court as the faster route to a solution. It isn’t necessarily the best option as family mediation can be a better option because:

  • Family mediation can be quicker and cheaper than traditional court proceedings.
  • In family mediation the mediator helps you reach a compromise, ideally after you have both taken legal advice and mediation support from a children law solicitor so you both understand your court options and the likely outcomes. Reaching a compromise agreement can be better than having a judge impose a decision on you.
  • If you don’t go to court, family tensions may not be further inflamed by the court process. That may mean you are more likely to be able to see the others point of view and continue to work together to sort out childcare arrangements.

That may sound great but children law solicitors are always wary about mediation if:

  • There is a suspicion that the other parent is only suggesting going to mediation to delay matters and will string the mediation along with cancelled appointments and excuses.
  • The other parent has said they will mediate but has a very fixed position about what they think is in the children’s best interests and said they won't change their views.

Mediation may still be an option in either of the above situations but it is best to make sure that the mediation is time limited and focussed as you don’t want to drift and delay in mediation, only to find that your ex-partner won't change their position at all, whilst you are prepared to make concessions and compromise.

Why delay may harm your children law application

Whilst it always thought best to give the other parent time to come round to the situation, for example, if the separation has come as a complete shock to them or they are struggling with emotions or mental health issues, time can work against you in some scenarios. For example:

  • If your ex-partner is refusing to agree to any contact and your children are young and need to form a bond with you.
  • If your ex-partner is going to use the delay to say that the ‘status quo’ of no overnight contact or no holiday contact should be maintained as that is what the children are used to.
  • If your ex-partner is going to say that the delay in resolving matters means that it is too late to do anything. For example, it isn’t in the best interests of the children to move to live with you as they are now enrolled at secondary school or are in exam year and a move to live with you would be too disruptive.

Every family situation has to be carefully considered as whilst immediately launching into a children court application may not be the best route to achieve a co-parenting solution, for others delay in starting court proceedings works against their best interests.


If you need help a children law court application then the family law team at OTS Solicitors are here to advise and represent you and to answer your family law questions. Call us on 0203 959 9123 or complete our online enquiry form so we can set up a skype, video conference or telephone appointment for you with one of our friendly and approachable divorce and family law solicitors.

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