With decades of experience, our divorce lawyers provide clear, focused advice to ensure our clients successfully navigate the process and find a constructive solution that works for you. To help guide you through the divorce process we’ve compiled a list of our most frequently asked questions which we hope will start to answer any questions you may have.
Are child custody and access rights always decided by the court?
Courts will only wish to get involved with issues concerning children when all other options have been exhausted. Terms such as custody and access are not usually used in Court now and we tend to refer to Child Arrangements.
Can I change mine and my children’s names after divorce?
Yes, you can change your name, but not your children’s names unless their other parent consents. By law, you can simply adopt a new name and start using it but again you cannot start using another name for a child without the other parent’s consent. If their consent is provided, you will need a statutory declaration, deed poll or other types of formal documents to update your passport, driving licence, bank accounts and other official records. This is something we can assist you with.
We are having difficulty reaching an agreement about our children. What happens next?
There are a number of options available when parents are having difficulties reaching an agreement regarding the care of their children. If you have tried to reach an agreement but cannot, it can be helpful to speak to a solicitor and seek advice as to what could be a suitable arrangement.
If there are still difficulties in agreeing, then the next step would be to try mediation. Mediators are specially trained in assisting parents in coming to an agreement, and it can be a much less stressful process than going to Court.
A qualified mediator will try to ensure that the conversation between the parents remains focused, and it can often reduce any animosity between you. It is also important to ensure that any children are also listened to and their wishes taken into account and a number of mediators are trained as child inclusive mediators.
There is the possibility of shuttle mediation if the parents do not want to be in the same room as each other. Some mediators will now involve the child in the process if the parents agree that it is suitable for them to do so.
If negotiation either by solicitors or through mediation is not successful, the final alternative would be to make an application to the court. Unless you are subject to specific exemptions, you will require a document (known as a MIAM) to be signed by a mediator as evidence of your attempt to resolve the issues.
If it becomes necessary for the court to make a decision about our children, what will it be based on?
The court will make its decision based upon what is in the best interests of the child.
When deciding on arrangements for a child, the court has to be mindful of the welfare principle and the welfare checklist. The child’s welfare will always be the Court’s paramount consideration.
The welfare checklist requires the court to have regard to (but not limited to) the following:
- The ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding)
- Their physical, emotional and educational needs
- The likely effect of any change in circumstances
- Age, sex, background and any characteristics which the court considers relevant
- Any harm which they have suffered or are at risk of suffering
- How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his/her needs.
What is parental responsibility?
The definition of parental responsibility is the legal rights, duties, powers, responsibilities and authority a parent has for a child .
All mothers, fathers registered on the birth certificate on or after 1 December 2003, fathers married to the mother at the time the child was born and civil partners of the mother registered on the child’s birth certificate automatically have parental responsibility.
When someone has parental responsibility for a child they have a right to make decisions concerning their care along with important decisions in a child’s life
These decisions include where a child lives, the name by which they are known, how and where they go to school, any medical decisions and giving consent for a child to leave the country.
If someone or a father wants parental responsibility, there are a variety of ways to achieve this.
You can obtain a parental responsibility order, an order that the child lives with them, that they are a special guardian or have adopted a child.
What happens to parental responsibility after divorce?
If you have obtained parental responsibility automatically, then this will not alter following a divorce or separation.
It may be different in cases such as when you have a special guardianship order , and that order is removed and replaced.
What is a Residence Order?
In April 2014 changes were introduced in law which removed the phrases ‘residence orders’ and ‘contact orders’. These two separate orders amalgamated into one order known as a child arrangements order.
This sets out the overall arrangements for a child, including who the child should live with, spend time with and a variety of other orders the court can make. Most parents have found that having the arrangements set out clearly in one order is much easier. This can be referred to as a “live with order” but in many cases the order recites that the children live with both parents and then sets out the time they spend with each.
I am concerned that my ex-spouse will prevent me from seeing my child. What can I do?
The family courts have a concept called the ‘no order principle’. This means that unless there is a genuine reason as to why an arrangement should be set out in an order, they will persuade parents to try and resolve issues between themselves.
This can be difficult in circumstances where a parent is concerned that their ex-spouse may prevent them from having contact in the future. It is always good, as a general practice, to put a parenting plan in place at the earliest possible stage to ensure that you both know what the arrangements are. If however, your ex-spouse becomes increasingly difficult or will not allow contact at all, then you will have to attempt mediation first before looking to make an application to the court.
Get legal support today
Speak to one of our family and divorce lawyers if you need legal assistance and supportive services that protect you and your children. Please contact Lucinda Holliday on +44 (0) 1494 478 603, email ljmh@blasermills.co.uk or fill in our contact form.