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Child Custody

After a divorce, making the right decisions for any children of the marriage – including child custody – becomes paramount. It is clearly essential to concentrate on what is in the children’s best interests

How is child custody decided?

Deciding with which parent a child is going to live is a key issue after separation or divorce. Factors to bear in mind (and which a court would consider if you can’t reach an agreement by yourselves) include:

– the child’s physical, emotional and educational needs
– the likely impact on the child if circumstances alter
– any risk of harm.

In practice, child custody is awarded to the parent who has had the major role in taking care of them (generally the mother). The other parent usually assists with the costs of child support.

Parental responsibility and non-resident parents

The parent who doesn’t have child custody will usually have contact rights. In many cases, the parties reach an agreement that the parent who is non-resident will have contact with a child each week or fortnight. This might include sleepovers, special occasions and/or a holiday together.

Both parents maintain parental responsibility and the right to be involved in major decisions. Where possible, maintaining a constructive relationship with your former spouse is preferable.

Child arrangements orders

If the parents can’t agree between themselves, or haven’t stuck to a former agreement, it’s possible to apply to the court for a Child Arrangements Order (CAO). These orders take the place of Residence Orders and Contact Orders. Orders generally last until the child is 16 years old, or rarely, 18 years old.

While those with parental responsibility can apply to the court for an order, other people, such as grandparents, might need the permission of the court.

Prohibited steps and specific issue orders

If you’re unable to agree on a significant decision, you can make an application for a Specific Issue Order. Example situations might include deciding where the child is to be educated, or his or her religious upbringing.

Prohibited steps orders are employed to prevent a certain action. For example:

– your child is being moved to another area of the country where maintaining contact will be difficult, or being removed from the UK altogether
– your former spouse changes the child’s surname following marriage to a new partner
– a certain medical treatment that you consider not to be in your child’s best interests.

Applying for an order

To apply to the court, you will usually be expected to first attend a Mediation and Information Assessment Meeting (MIAM) first. Exceptions exist, such as domestic violence cases, risk of harm or urgent situations (for example, one parent plans to remove the child from the country).

You need to apply to the court by using the C100 application form. Normally a £215 fee is payable, although help with costs may be available.

The court will contact the other parent, together with Cafcass (the Children and Family Court Advisory and Support Service). Cafcass represents the interests of the child in court.

The court and Cafcass aim to get the parents to reach agreement. If this can’t be achieved, you may have to take certain steps, for example:

– employing a mediation service
– putting together a Parenting Plan
– enrolling in a Separated Parents Information Programme.

A court order is issued which records any agreements and any outstanding matters, with further hearings being held as necessary. The court always aims to finish cases – including child custody – promptly and in the best interests of the child.

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