Child Custody: The Facts



Custody issues are probably the most upsetting aspect of divorce and separation, affecting all parties concerned. If relations between the couple have completely dissolved, they’re unlikely to agree on this delicate point. It can also be extremely painful for the child caught in the middle- either they’re too young to fully understand what’s happening, or they’re naturally distressed by their parents’ separation and can’t see the point of all this red tape.

Since it can be such a minefield, we shall attempt to address some of the most commonly asked questions about custody matters after a divorce.

Who gets custody?

As Divorce Resource explains, custody (or, to use the more up to date term,residency) is a complicated process, dependent upon the couple’s status. If a married couple separate, they technically both have parental responsibility. If either has cause to contest the role the other parent has to play in their child’s life, the court may be called upon to decide.

While there is a marked tendency for the mother to win custody, this can change according to circumstances. Up until 2002, parental responsibility was automatically rewarded to the mother in the case of unmarried couples; now a father can earn responsibility if he registers at the child’s birth or both sign a Parental Responsibility Agreement.

If the children are very young, most courts decide in favour of the mother, believing she is more likely to provide the care that the child needs. If the child is older and has a better understanding of the situation, more emphasis is placed upon their personal wishes.

What happens next?

In the situation that parents can’t reach a compromise, their case will have to be taken to the courts. Legal firms such as Duncan Lewis provide fully qualifiedfamily lawyers, experienced in all aspects of child custody law. They will judge your case on its unique merits, and help you decide upon the best way to resolve the conflict.

Custody is an extremely complicated process, entailing various different types of order according to the issue that the parents can’t agree upon. For example, if your primary concern is where the child is going to live, this will take the form of a residence order. You may also apply for orders regarding how often your ex sees your child- a ‘contact order’- or aspects of their upbringing you are unable to compromise upon, e.g. religious upbringing. This type of order is known as a ‘single issue order’. If you wish to prevent your ex from making a certain decision, that falls beneath an order- a ‘prohibited steps order’.

Anybody with parental responsibilities, such as mothers fathers and guardians have the right to apply for a court order. Once you have completed your papers, apply to a professional process serving company to start the procedure. They will let you know when the documents have been served, giving you the appropriate proof of receipt.

After your court order

After the order has been processed, the court will organise a ‘directions hearing’ with both parties. It has to be determined what the parents can and can’t agree upon, and whether the child is likely to come to any harm under the present circumstances. If it’s agreed that they aren’t in any danger, the court can move to finish the process, drawing up a consent order. This acts as an agreement between the separated couple, putting their decision into practice.

Parents must accept that the court’s ultimate duty is to put the child’s welfare first. If there is any risk of abuse or they feel that a parent is not capable of looking after the child, they will decide in the other parent’s favour. They will not put an order through without being utterly convinced it’s the right choice.

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