Separate parenting

It is important when a marriage, civil partnership or cohabiting relationship comes to an end to consider the children in the family. It is not unusual for there to be conflict between parents regarding which parent the children should stay with and how often the other parent has access to the children.

Often parents come to an informal agreement about living and contact arrangements and though this may not be ideal with both parents it is important that the children continue to feel loved and cared for by both parents.

Setting up two homes can be difficult and lead to financial difficulties and can influence how cooperative each parent is when sorting out the parenting time with the children. There may also be some animosity about the way the relationship ended, and this can add to the resistance by one parent to the other maintaining a full involvement with their children’s lives.

In some cases, parents apply to the courts to resolve disputes about where the children live (residence) and how often the children see the other parent. This decision will only be made in the best interest of the child and the solutions are made as court orders. When the case comes to court they will look at how the children are being cared for at present. To minimise disturbance to the children it is usual for existing arrangements to be maintained unless it is in the children’s best interest to change.

The Children Act 1989 section 8 (applicable in England, Wales and Northern Ireland) or The Children (Scotland) Act 1995 (applicable in Scotland) provide the legal framework for the main applications to court: Residence, Contact, Prohibited Steps/Interdict and Specific Issue Orders.

Residence Order

Residence Order – this defines where a child lives. The named person in the Order has the child live with them and cares for that child. This person will already have or will obtain Parental Responsibility (see below).

Contact Order

Contact Order – this is the child’s right to contact with the other parent or another named person. It defines the arrangements for a child to be in contact with someone named in the Order, usually the other parent or a grandparent. If a Contact Order is not made by the court, the presumption that the court will make is for contact arrangements to be negotiated. No Order does not mean no contact. The court may make an order for reasonable contact or such other contact as may be agreed between parties.

Prohibited Steps Order/Interdict

Prohibited Steps Order (Interdict in Scotland) – restricts the exercise of Parental Responsibility, for example if one parent objects to something that the other parent might do, albeit, that the proposed action is within normal parental responsibility conduct. This could include challenging the proposal of the parent with care to move away from the geographical area of the other parent.

Specific Issue Order

Specific Issue Order – deciding a dispute or disagreement to do with the exercise of Parental Responsibility. For example, decisions about schools and education. This could be important in terms of religious upbringing and attendance at a particular school.

Parental Responsibility

The term Parental Responsibility is given to the legal or lawful relationship of a biological or adopted child.

An unmarried father does not have automatic Parental Responsibility. Although unmarried fathers can obtain it by registering the birth together with the mother (The Children Act 1989 Section 4 as amended by The Children and Adoption Act 2002 applicable in England, Wales and Northern Ireland or The Family Law (Scotland) Act 2006 applicable in Scotland).

In England and Wales, the mother can agree to the father having Parental Responsibility by formal agreement presented to and registered in The High Court.

In Scotland, the parents can make a parental responsibilities agreement. This agreement needs to be registered with The Keeper of The Registers of Scotland.

If a child’s mother does not agree to the father having parental responsibility the father can apply for a Parental Responsibility Order (Order for Parental Responsibilities and Rights in Scotland). The court may decide to refuse to make an order if it is deemed not to be in the best interests of the child due to the applicant’s behaviour, for example, if there has been violence involved. It is important to note that only a person who has Parental Responsibility can give consent to medical treatment (except in an emergency).

Civil partners are eligible to apply for parental responsibility for each other’s children. However, this needs the consent of both parents if they both have parental responsibility.

In divorce or dissolution proceedings in England and Wales, a Statement of Arrangements (Form D8A) for children must be filed with the petition. The petitioner fills this in with details of the children’s circumstances. The court will want to see that the children’s needs have been considered by both parents. The respondent can dispute this if details given are still to be agreed upon.

Child Maintenance

Child maintenance can be arranged between the parents, by assessment through the Child Maintenance Service or by application to the court (only in limited circumstances). The court’s decision will be enforceable through an Order. The Child Maintenance Service uses a 6-step process to work out the rate of maintenance the paying parent should contribute. The ‘paying parent’ is the parent who does not have main day-to-day care of the child. The CMS will look at the paying parent’s gross income, things that may affect that income, other children the parent may have, and any shared care that occurs. There is a £20 application fee to the CMS and there are enforcement charges for non-payment.

The Child Support Agency has been superseded by the Child Maintenance Agency. The CSA no longer takes on new cases but will still handle cases opened before 25 November 2013.

Talking to the Children

Ideally both parents should talk to the children together about the separation and how living arrangements are going to change.
If possible, both parents should try to focus on the needs of the children and keep the relationship issues out of the discussions.
Parents who do not argue in front of their children and who refrain from blaming each other seem to manage better and the children manage better too.
Try to answer all of your children’s questions as honestly as possible without overloading them with details about what has happened.
Children of different ages have different questions, older children may be concerned about financial hardship, or having to move to a new house and change schools or not see so much of both their parents.
Respect and understanding of the emotional impact on them will help.
Younger children might not initially realise what has happened and may start asking questions weeks or months later.
Your child might ask if you still love mummy or daddy, and even if mummy or daddy still loves them. This can be heart-breaking, as some children may even think that the break-up was their fault.

Co-parenting

Shared or co-parenting can be very successful and have a positive impact on the children’s lives and the parents. When working out contact arrangements, it is important to think about the children’s routines, i.e. going to school, any clubs attended during the weekday evenings or at the weekends or football, swimming or similar activities. Then, think about your own working pattern and see what arrangements need to be made to accommodate before and after school childcare. Perhaps one parent could arrange to always pick the children up from school one specific day a week and take them to football practice on a Saturday morning and to Brownies in the week. The other parent may be able to take the children to school three mornings a week and arrange childcare for the other two mornings and for the other after school pickups and take another child to swimming lessons and cubs each week.

By sharing the routines and commitments, both parents feel that they are being supported by the other and the children have regular and dedicated times when they will see the parent that they don’t live with. Of course, overnight stays and weekends with this parent are, ideally, in addition to the ‘normal` parenting taxi duties that a lot of parents are involved with. Children remember and value the efforts that each parent makes, and even the smallest involvement shows that you want and intend to have a meaningful relationship with them.

Being available for a phone call anytime, calling them on a regular basis and keeping promises, all help the child feel emotionally secure and confident about coping with their parents not living together.

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