Who children will live with following a divorce or separation tends to be one of the thorniest issues to resolve. While the norm is now for the children to spend some time living with each parent, this is not always appropriate and the exact split of children’s time can sometimes be a real source of tension.

One thing to note is that ‘custody’ and ‘child custody’ are terms that are no longer used when talking about what happens to children during divorce and separation. Instead, we now normally refer to ‘child arrangements’ or ‘arrangements for children’. ‘Child residence’ is another term you may be familiar with that is no longer commonly used officially.

How child arrangements are decided will depend on the situation, but, in most cases, this is worked out amicably between the parents. Some parents can make an agreement quickly and privately without much support, but many use alternative dispute resolution methods such as mediation and collaborative law to make arrangements for where their children will live and other issues related to their upbringing.

However, there are some circumstances that can mean an amicable agreement to share the care of children is not possible. This includes where one parent is not considered able or suitable to care for their children, including where there has been a history of domestic abuse.

Given the uncertainties that can be involved and the vital importance of protecting your children’s welfare and your rights as a parent, the decision as to who the children will live with is one that should not be taken lightly.

What factors will be considered when deciding where children will live following divorce?

If you are making voluntary arrangements for children, it will be up to both parents to decide between them what is in their children’s best interests.

If a court is called upon to decide child arrangements, they will look at factors including:

• The child’s needs (physical, emotional and educational)
• What the child wants (especially where children are older and more able to articulate this)
• How any change in circumstances will likely affect the child
• How issues such as the child’s age, sex and other background matters may impact their needs
• How capable each parent is of meeting the child’s needs

This is known as the “welfare checklist”.

When working towards an amicable agreement, this welfare checklist can provide a good point of reference for making voluntary child arrangements.

How can you agree where children will live amicably?

There are three main options used to making voluntary child arrangements – private negotiation, mediation and collaborative law. Each has its advantages and may be appropriate depending on your circumstances.

Private negotiation

If the relationship between parents is good and there is no real dispute over child arrangements, it may be possible to simply agree privately what these should be.

While this can keep things quick, simple and friendly, it is worth recording what you agree in a written agreement to limit the potential for future dispute. Even if you are able to reach an agreement verbally, sometimes asking to get this in writing can cause people to become more cautious or defensive, so it is important to have this conversation early and in a tactful way.

Any voluntary agreement you make can be made legally binding by applying to a family court for a ‘Consent Order’.

Mediation

Mediation is very commonly used for both child arrangements and financial matters during divorce and separation. It involves the two parents meeting with a trained mediator for a series of sessions (typically 3-5) where the practical details of their separation will be worked out between them.

The mediator is a neutral third party who is there to facilitate the discussion, advise on points of law and defuse any potential conflict. They will not give an opinion on what decisions either parent should make.

To start the mediation process, you will both need to attend a Mediation Information and Assessment Meeting (MIAM), either together or separately. This will give you more information about how mediation works and whether it is likely to be a good fit for your circumstances.

Any agreement you make through mediation will be recorded in a ‘memorandum of understanding’. This is not a legally binding document, but simply a formal record of what was agreed. You would need to apply for a Consent Order to make the arrangements legally enforceable.

Collaborative law

Collaborative law is an alternative to mediation that can be useful if you wish to have your own legal representative with you during negotiations over child arrangements. It involves both parents and their respective solicitors having a series of four-way, round-the-table meetings to work out where children will live and related details.

At the start of the process, all four participants will sign an agreement that nothing disclosed in the process can be used in any subsequent court proceeding and that the lawyers present will not represent their clients in such proceedings. This ensures everyone is fully committed to making the process a success.

Collaborative law can be a good option if there are more complex issues to work out or where you are struggling to reach agreement but are both keen to avoid court proceedings.

What happens if you need to go to court to decide where children will live?

If you are unable to reach an amicable agreement, or attempting to do so would be inappropriate (e.g. following domestic abuse), then it may be necessary to apply to a family court for a Child Arrangements Order. This will set out where your children will live and other key details relating to their upbringing.

A court will consider the welfare checklist covered above and make a decision it feels is in the best interests of the children. Any decision made will be legally binding, but can potentially be challenged or varied later if there are reasonable grounds for doing so.

You can also apply to a court for other types of orders relating to children where appropriate, including:

• Prohibited Steps Orders – to prevent certain actions being taken with respect to your child/children e.g. their being taken abroad without your consent.
• Specific Issue Orders – where a decision needs to be made about a matter not covered by a Child Arrangements Order, such as your children’s schooling or religious upbringning

Book a free 30-minute consultation with our cohabitation lawyer

Our divorce solicitors in Horsham work hard to get the best outcome for children and parents during a separation. We can provide sensitive, realistic advice and can assist with reaching an amicable agreement on child arrangements or supporting you through court proceedings as required.

We offer a free 30-minute consultation over the phone or via videoconference to discuss your circumstances and how we can help. We can then work closely with you to help you make the right arrangements for your child that protects their wellbeing while respecting your rights as a parent.

To arrange your free 30-minute consultation about any aspect of divorce, please contact Marwa Hadi-Barnes today.