Children’s Issues

The English Courts can resolve disputes concerning children. A common dispute concerns with whom the children should live. English courts can make residence orders to settle this. (These orders used to be called custody orders). The Courts are sensitive to the need to protect children from being pressured to take sides or make choices.

Another common issue is contact (previously called “access” and the same as U.S “visitation”) The Courts consider that regular contact is mostly desirable although the practice of how it is achieved varies depending on circumstances.

The Courts can also make orders on other aspects of children’s lives such as schooling although this is less usual.

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Children's Issues

Children's Issues - Scenario Analysis Example #1

Mr and Mrs H separated. Mr H moved a few streets away and their eldest boy (now 15) lived with him. The younger children (14 and 12) stayed with Mrs H but the children live near each other and attend the same school. Mrs H remarried and wishes to move to her new husband’s city. Mr H sought advice about residence of the other children. He told us the middle child wanted to stay at school with his friends.

Our solution:
There is no set age at which a child can “choose”. Nevertheless in reality it would be hard for Mrs H to resist the 14 year old’s wishes. We needed to be careful not to stress the children. Rather than issuing proceedingswe arranged mediation for Mr and Mrs H to discuss the issues. We advised Mr H to be flexible regarding contact. They reached an amicable arrangement for all children to live with Mr H for the school week and half weekends; and flexible school holiday arrangements.

What our clients are saying:

‘EW’, St Albans

Due to your outstanding professional assistance and efforts the children, my Mum and I will now have a peaceful Christmas and enter the New Year optimistically. Thank you so much!

Children's Issues FAQs

Here is a selection of common questions relating to how children are involved in and affected by the divorce process. If you have unanswered questions, please contact us using the form above or you can contact us here.

Do we have to go to Court to decide what will happen to the children?

No, in almost all cases this is not required. Typically, the parents agree and often formalise the arrangement with the assistance of their lawyer. Where parents agree there is usually no need for any court order at all. If the parents cannot agree it would then become a matter for the Court to decide.

Can I insist that I see my child on special occasions, such as birthdays?

Normally the non-resident parent will be able to agree to see their child on significant dates and occasions. This can either be agreed informally with the other parent but if there is a dispute then the non-resident parent could apply for a court order.

Can I take my child to live abroad after divorce?

Permission will be required from the other parent or via a court order. Taking your child abroad for longer than a holiday would be considered abduction and the other parent could apply to the Child Abduction Unit to have your child brought home.

What happens to step children regarding custody and maintenance?

If the step-parent has taken the role of parent during the marriage and their ex-spouse (the biological parent) is not able to provide for the child, the step-parent may then be required to pay child maintenance.  Whilst it is typical for the child’s biological parent to gain residence, this is not always the case. It will depend on how capable the parents are to provide for the child what is in the child’s best interests.

Does the CMS (formerly the CSA) have to be involved in deciding child maintenance?

No. Whilst you may use a CMS calculation to aid with deciding a maintenance payment figure, it is then common for a private maintenance agreement to be set up by your lawyers. The CMS or court do not then need to be involved. If required, 12 months from the agreement, the CMS can become involved if either party wishes it.

Can I change my child’s surname after divorce?

Changing your child’s surname would require the other parent’s written consent or a court order.

Will the family home be retained for the child to live in?

If it is in the best interests of the child to remain in the family home with one of the parents it is possible that the court will order the home to be retained for a set length of time.

Can I move with my child to another part of the UK?

If you are the resident parent, you do not need the other parent’s permission to move with your child within the UK. However, the other parent could request a court order preventing you from moving whilst the situation is looked at in more detail. In making a decision as to the child’s living arrangements, the court will always look first at what is in the best interests of the child.

Can I take my child abroad on holiday?

If you have a court order setting out that the child is to live with you then you do not need ask permission from the other parent to go on holiday abroad for up to 28 days. If you do not have a court order, you will require the permission of the other parent. If the other parent will not give permission, you can apply for an order to go on holiday with the child.

Will my ex-spouse having a new partner affect what contact they can have with our child?

Typically no. However, if you have good reason to be concerned about your child’s welfare with regard to your ex’s new partner, you could apply for conditions to be imposed upon the existing contact arrangements.

Can our child choose which parent they live with?

If the child is old enough and has sufficient understanding to state a preference, the court will take into account their wishes. It is however unlikely that the child will simply be asked to choose because it is an unfair question and the reasons behind a child’s answer may be mixed. The court will however also consider wider factors, including each parent’s ability to meet the child’s needs, the child’s safety and how the new change in circumstances may affect the child.