While the emotional and practical side of divorce or separation is hard enough when you’re childless, when children are involved, the whole process can be a lot more complicated.
Many parents who split up have no idea what their rights are as far as the children are concerned, so here Ann Robinson, a family law expert at Blacks Solicitors outlines 5 essential things that parents in England and Wales need to be aware of after divorce or separation.
1. Parental Responsibility
The legal definition of Parental Responsibility (PR) is ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’. This means having the right to make decisions about your child, including the school they attend, their medical treatment, and which, if any, religion they follow.
“Mothers automatically acquire PR, but fathers will only automatically acquire it if they were married to the mother at the time of the child’s birth,” explains Robinson.
If the parents were unmarried, a father must have jointly registered the birth with the child’s mother on or after December 1, 2003. If a father hasn’t automatically acquired PR he may be able to obtain it by getting an agreement or an order from the court.
“Getting divorced doesn’t remove PR from either parent, and it can continue to be shared,” says Robinson, who points out that people other than the parents can also get PR, including step-parents or other people with whom the child lives, such as grandparents.
Robinson stresses that having PR doesn’t give a parent the automatic right to contact with a child.
But she explains: “There’s a presumption that, unless the contrary is shown, the involvement of both parents in the child’s life will further the child’s welfare. Currently there’s no definition of what ‘involvement’ is; this can include direct or indirect contact with the child.”
However, after separation there’s also no presumption that a child’s time will – or should – be split equally between the parents and that the child/children will live with the mother rather than the father. Robinson says legal advice can help with negotiations about contact, and for out-of-court dispute resolution, such as mediation, to reach a contact agreement.
If agreement can’t be reached, either parent may issue an application for a Child Arrangements Order which states who a child lives and has contact with.
“It’s disappointing that so many fathers still think they’ve lost their rights regarding their children on separation. This is simply not the case,” stresses Robinson.
“Timing is important. A parent who is isn’t being allowed by the other parent to see their children should take action swiftly, to minimise the risk of the children suffering emotional harm from the loss of the relationship.”
Robinson warns that the discussions regarding financial arrangements for children after divorce or separation should be kept apart from matrimonial finances.
“The time the child spends with each parent could be a factor in determining the level of child maintenance a parent is liable to pay,” she says.
The Child Maintenance Service takes into account the number of nights a child spends with the paying parent when assessing the level of financial contribution. However, Robinson warns that child maintenance shouldn’t be a motivation for agreeing or rejecting proposals for the child’s contact with the other parent, or seeking a particular level of contact.
“The courts take a very dim view of parents who link the arrangements for their children and matrimonial finances,” she stresses.
4. Major decisions
#FamiliesNeedFathers met with #DWP Minister @JustinTomlinson to discuss failings of #ChildMaintenance to support #SharedParnting, unaffordable assessments and ways in which family conflict escalates. The minister, who only got the job in July, engaged constructively. pic.twitter.com/5hPP3Ymm6N— FNF Both Parents Matter (@FNF_Media) September 10, 2018
Parents with PR have the right to be consulted about the major decisions in their child’s life, such as if the other parent wants to take the child out of the country. So if the child/children live with their mother after their parents’ divorce, and she wants to take them on holiday abroad, she’d need the consent of her ex-husband and everyone else who has PR for the children.
Another example of where consent would be needed from others with PR for the child is if one parent wants to change a child’s name. If consent from those with PR can’t be obtained, a parent may need to apply for a Specific Issue Order to gain the court’s permission.
If you’re the parent wanting to stop the other party taking the child abroad, you can be proactive and apply to the court for an order that prohibits the other parent from doing so. This is known as a Prohibited Steps Order and depending on the circumstances of the case, you may need to make the application on an urgent basis, explains Robinson.
“We’ve seen a rise in the number of clients who have been stopped at the airport when trying to take their children out of the country, so taking a letter signed by the other parent is a wise precaution,” she adds.
5. Moving away
After divorce or separation, a parent may wish to move away with the child/children. The relocation would be considered as either an internal relocation (i.e. a move to somewhere in the country), or an international relocation.
Robinson explains that, if an internal relocation is a substantial distance away and will involve the children moving schools, a parent will need the consent of the other parent with PR, and anyone else who has PR, or a court order if consent can’t be obtained.
If the proposed move is abroad, she says the written consent of everyone with PR will again be required. If the proper consent isn’t obtained, a parent may be committing a criminal offence, and Robinson says that because of how serious this can be, legal advice should be sought to ensure a parent has secured the correct consent.
Robinson adds: “Due to the time it can take for the court to determine an application to relocate, the application should be made in plenty of time before the intended move, otherwise you could easily find your plans have to be placed on hold before the court reaches a decision.”
- Press Association