Children: Your Questions Answered (FAQ's)

  1. I have heard that the mother always gets the children. Is this true?

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    No. The court does not have a set of presumptions about who should be caring for children. Each case is individual and the court will be interested in one thing only: what is in the children's best interests.

    There are families in which one parent has taken a step back from employment or reduced his or her working hours to care for the children and this could mean that the children would spend more weekday time with that parent for practical reasons. This could equally apply to a mother or a father. In other families the children will divide their time pretty much equally between their parents' homes after separation. There are almost as many permutations as there are families.

    The court will not impose a solution on any family unless there is an insoluble issue that needs to be determined. Even within the court process, the judges will do their utmost to bring the parents towards an agreed arrangement and avoid a contested hearing if at all possible.

  2. I don't want to take my husband to court but we just can't seem to agree anything to do with the children. How can we move forward?

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    There are lots of ways to try and deal with a dispute, even when talking face to face seems not to be working any more. Mediation (click here for more) can work really well for some families. A specially trained facilitator, usually a family lawyer themselves, will bring the parties together to try and work something out everyone can live with. Collaborative law (click here for more) is also an option to resolve the issues without the need for the court involvement. This is where each party has a specialist collaborative lawyer and the couple and their representatives take part in a series of 'four way' meetings to try and resolve matters. The parties sign up to a participation agreement that if they take the matter to court they will have to get new lawyers. No one can prevent a case from being taken to court but this acts as a big disincentive with the aim of keeping people engaged in non-court dispute resolution and overcome various impasses which may arise.

  3. I am not married to the mother of my child but I am on his birth certificate. What rights do I have?

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    If the birth was registered after 1 December 2003 then you will have parental responsibility for the child. If the birth was registered before this date, then you do not have parental responsibility. However, you can acquire parental responsibility for the child in several ways:

    • If you marry the mother of the child

    • If you enter into a parental responsibility agreement with the mother

    • If you obtain a parental responsibility order from the court
  4. My wife and I are getting divorced. We want to keep everything as amicable as possible but are worried that the court might get involved. What can we do?

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    It is a really important principle of the law relating to children that the court will not become involved in family life unless it needs to do so. Even though the court will be handling your divorce, this is very much a paper exercise and it will not scrutinise the arrangements for the children unless either you or your wife makes an application to decide a substantive issue you cannot agree between yourselves. For most divorcing couples, the court will play no active role whatsoever.

    Even if a difficult issue does arise, you and your wife can attempt to resolve matters through discussions or through a slightly more formal process of mediation. This can work really well to bring about a resolution before issues escalate and become acrimonious. In fact, in all but exceptional cases, the court will expect parents to have been to a Mediation Information and Assessment Meeting or MIAM before applying to court.

  5. My ex-partner wants to move to another country with our children. I don't want them to go. Is there anything I can do?

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    You should talk to a solicitor urgently to assess whether you need to take action straightaway. If there is any chance of your children being taken out of the country against your wishes, whether lawfully or unlawfully, you need to take legal advice immediately. It is far easier to deal with the situation before the children have left than it is to attempt to get them back after they have gone.

    If you think there is a real risk that your ex-partner will try to take the children out of the country, you may need to act immediately to obtain court orders to prevent your ex from doing this, at least until the court has had the chance to look at the situation properly. If you are in any doubt, you should take urgent legal advice.

    If the situation is not urgent but your former partner does wish to move abroad with the children once he or she has the permission of the court, the judge dealing with your case will need to make a thorough investigation into whether a move is in the children's best interests. This will be the determining factor and the judge will look at all the circumstances before reaching a decision. These cases, often known as 'leave to remove' applications can be very difficult because neither outcome can make both parents happy. Detailed case preparation is vital whether you are the parent who wishes to move abroad or the one who opposes a move. No two situations are identical and the court will look at everything from the relocation plan to the nature of the children's relationship with the parent who wishes them to stay.

    If you do not have parental responsibility for the children, your former partner can remove them from the country without your consent or the permission of the court. You will therefore need to take the initiative and apply to the court if you wish to oppose a move abroad.

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