Who decides which parent should have custody of a child?
When parents separate, the first question for most is going to be: Who is going to look after the child or children or, put differently, how much time is the child going to spend with each parent? Often the word "custody" is used in this context, but this word has no specific, legal meaning. If there is a court order defining where a child will live, it is called a "child arrangements order". However, it is usually not necessary to have a child arrangements order to determine where a child will live or who will have "custody" for a child.
Making decisions in the child’s best interests
Initially it is up to the parents to make a decision as to where the children are to live. When making this decision the parents should consider what is in the child's best interests, and often practical arrangements will need to be made. For example, the child may be going to a particular school or nursery that he or she has become used to. It is important for there to be stability, but it is also very important for there to be enough flexibility to ensure that the child or children spend quality time with both parents.
Alternative Dispute Resolution
If the parents are unable to come to an agreement, there are various ways of trying to resolve the dispute. At this point you may need to seek legal advice to find out how such a dispute can be best resolved in all the circumstances affecting your situation. At Watson Thomas Solicitors we will meet you and listen to your concerns and make suggestions as to how the conflict can be resolved. We would often start by writing to the other parent to see whether common ground can be found.
We may also suggest that you attend mediation. This is a voluntary process whereby you and your former partner meet with an independent mediator who will find out what the issues are and try to resolve them without a decision being imposed by the court. Solicitors can advise you during mediation. Watson Thomas Solicitors can also facilitate mediation for you as we have a trained mediator within the firm.
Application to the Court
If it is not possible to resolve the issues by way of negotiation or mediation you may have to consider making an application to the court. Sometimes there are factors, such as domestic abuse, that create a real imbalance in the parties’ respective positions. This may make alternative dispute resolution, such as mediation, unsuitable so that the court must intervene.
The court will then consider the arguments put forward by both parents and make a decision as to what is likely to be in the best interests of the child. The court will be assisted by Cafcass, the Children and Family Court Advisory and Support Service. They will consider whether there may be a risk to the child and will often try to mediate between the parents by listening to their concerns and suggesting solutions as to how they can be overcome.
If a child has not seen one parent for a long time, Cafcass may support contact by facilitating the first contact session. If the matter cannot be resolved by agreement, the court may order Cafcass to prepare a report.
A Cafcass officer will then meet both parents and the child and recommend how many days the child should live with each parent or that the child should live with one parent whilst the other parent has regular contact.
The court is not required to listen to the advice but will be guided by the report. Often parents are able to agree arrangements after the report prepared by Cafcass has been considered.
If no agreement can be reached a final hearing may have to be listed to allow the court to be able to gain a better understanding of the issues that prevent an agreement from being reached. The court will only make an order if it feels that to have an order in place is better than having no order at all.
If you have any further questions, Watson Thomas Solicitors offer a free initial interview where we can explore the options available to you. For further information, please visit www.watson-thomas.co.uk