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News & Articles

Osborne Morris & Morgan > News and Articles > Family > Divorce and Children: Common Questions

Divorce and Children: Common Questions

Posted on 29 Mar 2016, in Family



Going through a separation or divorce is often a stressful and emotionally charged experience. As parents, there is the added concern about how the children will be affected.

If you are a parent going through a separation or considering divorce, then a priority for you will be working out new arrangements for who your children will spend time with and when.

In this article we aim to help answer some common questions asked by parents going through this situation.

Who Decides On The Arrangements for Our Children?

Ideally parents would decide together about the arrangements for their children. But where that’s not possible, mediation is the next step.

If parents are able to reach a decision about arrangements, either between themselves or with help from mediation, then there is usually no need to go to court.

The law considers that these voluntary arrangements between parents are more likely to succeed, and it’s therefore generally understood that the Court will not intervene unless it’s in the best interests of the child.

However, sometimes parents struggle to come to an agreement even with the help of mediation and this is where a Judge may be asked to make a decision.

The Court has the ability to make a ‘Child Arrangement Order’. This sets out:

· where the children will live

· when they’ll spend time with each parent

· in certain circumstances, who’ll pay child maintenance

You must prove you’ve considered mediation before you go to Court, although this doesn’t apply in all cases, for example if there’s been domestic abuse.

How Can I Ensure I’m Still Involved With Decisions About My Children?

A large part of being a parent is helping to make decisions about your child’s future. To be able to continue being involved in these decisions after separating or divorcing, you need to have ‘parental responsibility’. This gives parents the right to make important decisions (such as change in name, religion or school) in their child’s life.

How Do I Know If I Have Parental Responsibility?

Mothers – all mothers have parental responsibility (unless surrendered through an adoption).

Fathers –

· If you were married to the mother when your child was born then you have parental responsibility.

· If you were unmarried when you child was born, but were named on the birth certificate and your child was born after 1 December 2003 then you have parental responsibility.

· If your child was born before 1 December 2003 and you were unmarried, then only the mother automatically has parental responsibility.

Fathers can acquire parental responsibility by one of the following:

· marrying the mother of the child after the birth

· making a parental responsibility agreement with the mother

· applying to the court for a Parental Responsibility Order
· being appointed the child’s guardian

Our experienced family lawyers can provide assistance on these issues and apply for any orders and agreements that may be required.

Common Questions Regarding Divorce and Children:

It’s natural to want to understand the processes involved when it comes to arrangements for your children in a divorce or separation.

Below are some of the questions we’re asked most often.

How do we decide who the children will live with?

As we mentioned above, it’s up to you as parents to decide residency on the basis of what is best for the children.

If you cannot come to an agreement, the next step is mediation and if that fails then you can ask the Court to decide on a Child Arrangement Order.

Can children live with both parents (“shared residence”)?

Shared residence is where the child lives with both parents, either through the agreement of the parents or by way of Court Order.

Shared residence does not necessarily have to mean an equal split of time; a Court can order shared residence, for example based on a 3 day- 4 day sharing arrangement. The Order can also reflect both parents having made equal contributions to their children’s lives and have shared responsibility of the children’s upbringing.

What is sole residence?

Sole residence is where a child lives with one parent. If ordered by the Court, this will almost always be accompanied by an Order that the child will spend time or have contact with the other parent (unless this is deemed unsafe).

If the Court does make an Order setting out that a child is to live with only one parent, the other parent will usually retain parental responsibility and have a full say in the child’s upbringing.

How about “contact” or “access” arrangements?

From April 2014, the court can no longer make contact orders. It can however make arrangements about who a child is to spend time with (“contact”) as part of a Child Arrangements Order.

Contact can be:

· Face to face (Direct)

· Telephone calls, video chat, emails (Indirect)

· With another person present (Supervised or Supported)

· Child stays overnight with non-resident parent (Staying)

Where required, the child agreement order can include in-depth instructions for the contact arrangements, including pick up places or times.

At what age can a child choose who to live with?

There is no set age at which a child can make the decision about who to live with, however the older the child the more likely their wishes are to hold influence.

There are seven criteria set out in The Welfare Checklist – section 1 Children Act 1989 for the courts to consider when making a decision concerning a child. The first one on the list is ‘the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)’.

The Courts will also take into consideration whether or not a child’s wishes and feelings are their own, or if there were outside factors that swayed their decisions.


How we can help

Since this article has been published we no longer offer Family Law services but we can help you with:


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