Child Arrangements after Separation or Divorce

Child arrangements after separation or divorce

If you are divorcing or separating and you have children with your partner or spouse, arrangements will obviously have to be made about where the children will live and how much time they will spend with each parent. Other issues may also arise such as choice of school. Many separating parents are able to agree these arrangements as part of the divorce and separation process, and where the parents are agreed, it is not usually necessary to involve the courts or to obtain court orders. Indeed, parents are encouraged by the law to reach their own arrangements and without involvement of the courts as far as possible.

Where parents cannot agree, we recommend that as a starting point they each take legal advice about the general approach that the law would take in their particular case. Decisions about child arrangements and other children issues should be made based on the best interests of the child, rather than on the individual wishes of the parent. Generally, unless a parent poses a risk of harm to the child, the starting point is that the child should continue a relationship with both parents, and even if the child “lives” mainly with one parent, they should be spending quality time with both parents on a regular basis as far as this is practically possible.

The wishes and feelings of the child may also be taken into account in the decision making process, particularly with older children, and where the child’s wishes and feelings can be clearly ascertained.

The “Welfare Checklist”

There is no rule of thumb and what is appropriate and in the best interests of the child will depend on their individual circumstances. In working out what arrangements are in the best interests of the child the legal guidance requires consideration of certain factors including:

Ascertainable wishes and feelings of the child
Physical, emotional and educational needs of the child
The likely effect on the child of any change in their circumstances
The age, sex and background of the child
The ability of each parent to meet the child’s needs
Any harm or risk of harm to the child.

This guidance is known as the “welfare checklist”.

Process options to reach agreement on child arrangements

Once both parents have taken legal advice and considered the welfare checklist it is often possible to then go on to agree appropriate arrangements in the light of that advice. Parents may choose to then go back to discussions between themselves, or through solicitors’ correspondence, or to try mediation, or a combination of these process options. If it is still not possible to reach an appropriate agreement, then either parent can make an application to the Family Court and ultimately ask the Judge to decide. But going to court should generally be used only as a last resort in children matters, or if there is an urgent risk of harm to the child.

Applications to the Court – Child arrangements Orders

Either parent can ask the court to decide the arrangements by making an application to the court for a “Child Arrangements Order”. Previously these court orders were known as “contact” and “residence” orders, or as “access” or “custody” orders. However, those labels are no longer used by the Family Court and instead a “Child Arrangements Order” is the term used to cover the order that the court will make setting out where the child lives and how they spend time with each parent. When making its decision the court will be guided by the best interests of the child, taking into account the “welfare checklist”.