What Happens To Your Children When You Divorce?
When a couple decides to end their marriage, the two most pressing questions are what will happen to the children and how to split their assets.
Family Law Solicitor Behzad Sharmin advises on both these aspects of family law to help parents reach an agreement on parenting arrangements and a financial settlement.
Contact OTS Solicitors Today for Expert Family Law Legal Advice.
Parenting after a separation or divorce
Parents often assume that they will either need to go to court to get a custody or contact order or that the court will make a child arrangement order as part of the no-fault divorce process. Neither of those assumptions is correct.
Under English family law, the court will not make a child arrangement order, a prohibited steps order, or a specific issue order unless it is necessary. In most cases, when parents negotiate a parenting agreement, an order is unnecessary.
Why negotiating parenting arrangements is usually best
It is usually best to negotiate where your child will live and the contact arrangements rather than ask the court to decide. There are five reasons for this:
- Parents reach a decision rather than a family law judge imposing their views.
- Negotiating is quicker than a child arrangement order application.
- It is easier to maintain a cordial parental relationship with an ex-partner if you have not been through contested court proceedings.
- Negotiating parenting time is cheaper than making or responding to a court application.
- Children find court proceedings stressful, as they can increase parental animosity and family tension.
The times when applying to court for a child arrangement order is the best option
There are times when a parent should apply for an order under the Children Act 1989, rather than try to negotiate with their ex-partner. These situations may include:
- Your former partner will not negotiate.
- Your child is at risk of being taken overseas by the other parent without your agreement.
- There was domestic violence or abuse in the relationship, and you or your child are at risk of domestic violence if there is ongoing contact.
- Your ex-partner is refusing all contact, and you cannot see your child.
- You have exhausted negotiations, and your ex-partner will not negotiate or compromise despite your reasonable suggestions.
A Family Law Solicitor can advise on whether a child arrangement order application is the best route and on the potential court outcomes. If you take early specialist family law legal advice, you significantly reduce the risk of having to go to court to obtain a child arrangement order. This process can be very stressful and further escalate animosity between you and your spouse. That’s because a Family Lawyer will advise on the best ways to negotiate, after considering your family circumstances. They will advise on where you should compromise based on their experience of likely outcomes if you were to apply for or respond to a child arrangement order application.
How the court decides a child law application
When the court makes a court order about the upbringing of a child, it is a fundamental principle of English family law that the child’s welfare is the court’s paramount consideration.
The court will assess what court order is in your child’s best interests after reading statements, hearing evidence, and, when a CAFCASS officer is appointed, after reading their report and hearing their evidence.
The court assesses what order is in a child’s best interests after considering a statutory welfare checklist contained in the Children Act 1989. The checklist includes:
- The ascertainable wishes and feelings of your child concerned (considered in the light of the child’s age and understanding).
- The child’s physical, emotional, and educational needs.
- The likely effect on your child of any change in circumstances.
- Your child’s age, sex, background, and any characteristics which the court considers relevant.
- Any harm which your child has suffered or is at risk of suffering. This includes physical and emotional abuse.
- How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting your child’s needs.
- The range of powers available to the court under the Children Act.
The judge will decide what child arrangement order is best based on their welfare assessment. The judge’s child arrangement order may not involve the parenting arrangements that either parent asked the court to make. That’s why it can be preferable to negotiate and compromise with an ex-partner so you can control what happens, rather than risk a judge making an order you do not think is right for your child.
Take legal advice before negotiating parenting arrangements
Some parents can reach an agreement directly, without professional help. However, Family Lawyers recommend that you take legal advice before reaching an agreement because:
- Sometimes parents can feel bullied into reaching an agreement that is not in their child’s best interests.
- A parent may not understand the impact of agreeing to a specific parenting arrangement on child support or the financial settlement.
- The arrangements may not be practical.
The effect of not taking legal advice can be:
- A parent assumes that shared parenting must be agreed to, even though the arrangement is not practical or does not meet their child's needs.
- A parent ends up with no or minimal child support payments and struggles to pay the bills.
- A parent assumes that the court will always side with their ex because they are forceful, but a Family Lawyer will advise you on likely outcomes if you negotiate with professional help or apply for a child arrangement order.
- You end up doing the practical parenting time during the week, and your ex gets all the quality time at the weekends.
Ways parents can negotiate contact after a separation or divorce
There are several ways you can negotiate parenting arrangements after a separation or divorce, including:
- Solicitor negotiations
- Roundtable meetings with your family lawyers present.
- Shuttle negotiation.
- Family mediation.
Round-table Meetings and shuttle negotiation
Often, family law disputes can be resolved by getting the parties talking in a non-confrontational environment. Round-table meetings can take place in three rooms: the husband and their solicitor in one, the wife and their solicitor in another, and a third room for the two solicitors to meet and discuss the issues before returning to their clients (shuttle negotiation). Alternatively, if appropriate, the husband and wife can be in the same room with their respective lawyers.
Round-table meetings are a cost-effective way of resolving child arrangement disputes. They are generally effective because they put parents in control of resolving the parenting impasse, allowing a non-confrontational resolution.
Mediation
Mediation is a popular form of alternative dispute resolution. Before initiating court proceedings, most couples will need to attend a Memorandum of Information and Assessment (MIAM). This involves a trained mediator meeting individually with you and your spouse to explain the mediation process. If you decide mediation is suitable for you, the process can begin. If you do not want to consider it, the mediator will sign a statement confirming that you attended a MIAM, and you can apply to the court for a child arrangement order.
The benefits of mediation combined with legal support are that an impartial, professional mediator can help you reach a parenting agreement without the cost and stress of court proceedings.
How the Family Lawyers at OTS Solicitors can help you
At OTS Solicitors, our specialist Family Lawyers can help you with all aspects of separation, divorce, children, and financial settlement legal advice. We will try to help you resolve matters amicably without the need for court hearings.
Contact Online and London Family Law Solicitors for Children Law Legal Advice.
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