Family Law – Children

Family Law – Children

  • The law no longer refers to “custody” and “access” in relation to children following separation or divorce.  “Residence” refers to where a child will principally live when their parents separate or divorce.  “Contact” refers to the time that the parent with whom the child does not principally live has with the child.
  • If Court intervention is required then the Courts can issue ‘Residence Orders’ and ‘Contact Orders’ – but only if shown that it is better for the child that there is a court order than no order.  The current system is where possible non-interventionist.  The overarching principle is the best interests of the child.
  • All mothers, and most fathers, have ‘Parental Rights and Responsibilities’ in respect of their child.  This means an obligation to protect, maintain and provide a home for the child.  Parental Rights and Responsibilities also relate to educational and healthcare decisions in connection with the child.  Mothers and married fathers automatically acquire such rights and responsibilities at birth.  However unmarried fathers who are named on the birth certificate will have Parental Rights and Responsibilities if their child was born after 4 May 2006.  Fathers of children born before then must enter a formal written agreement with the mother or apply to the Court for Parental Rights and Responsibilities.
  • The law provides that both parents have an obligation to maintain their child.  In the event of a separation then the parent who does not live with the child has a responsibility to pay maintenance.  The parents are free to come to any agreement as to how much maintenance will be paid. We can help you with the preparation of a written Agreement which provides clarity and certainty.  Such an Agreement can be enforced as if it were a Court Order.  If agreement cannot be reached then the Child Support Agency can be asked to make an assessment.
  • Our team is experienced in handling child related matters sensitively.  We aim to help you resolve issues without the need for Court action.  We can work with the input of family mediation and are collaboratively trained to help you reach a satisfactory outcome.
  • Should the situation become fraught then some families need the court to regulate where a child should live and set out specific dates and times for contact.
  • We are able to advise and guide you through the legal procedures.

FREQUENTLY ASKED QUESTIONS IN RELATION TO CHILDREN

  • Where will my child live?
    If parents cannot decide with whom their children should principally live, the court will make that decision for them. The court will decide this based on the principle of what is in the best interests of the children as being paramount. Both parties will be encouraged to attend Family Mediation to discuss such matters and try and reach agreement. In the event of no agreement, the court will make the final decision.

  • What contact am I entitled to?
    If parents cannot agree what contact the parent who does not have the principal care should have with the child, again the court will make the final decision based on what is in the best interests of the child. Parties will be encouraged to seek help from Family Mediation.
  • Do I have to go to court?
    Parents are always encouraged to use mediation services rather than use the court process. The court process would only be as a last resort.

  • What can I do if my child does not want to have contact?
    The court can take into account the views of a child if the child is mature enough to express such views. The court is entitled to presume that a child aged 12 or over is mature enough to express such views and can take their views into account. However, the court does not have to follow the views of the child. A child has legal rights and can seek separate legal representation if they feel their views are not been followed. Family Mediation has a young persons’ counselling service that can assist. Sometimes it is helpful to involve child psychologists if a child is stating they do not wish contact.

For more information or advice please call 01309 672216 or email janeferguson@r-r-urquhart.com