There are no hard and fast rules about what time the children should spend with each parent. Our laws are alive to the fact that each family is unique, and a number of factors need to be taken into account when deciding a child’s future living arrangements. The starting point is to look at the welfare checklist’.
The welfare checklist
If a dispute over arrangements for children goes to court, the factors to be considered are primarily set out in what is known as the ‘welfare checklist’ which was introduced by the Children Act. These include:
- the age, sex and background of the child;
- their physical, educational and emotional needs;
- how they feel and what they would wish to happen;
- the likely effect on them of a change in circumstances; and
- if they are at risk of suffering harm.
This is not an exhaustive list but it is a good starting point when thinking of future arrangements.
The age and stage of your child’s development is important. For example, younger children will typically spend more time with parents than a teenager who will have a more independent social life.
If your children have any special needs, they may have specific requirements for medical equipment which a family may not be able to duplicate in two homes. Where your children go to school is important, as is the stage of their education and how a move would impact on their education.
While the wishes and feelings of your children should be taken into account, the weight given to those wishes should be in proportion to their age and understanding.
The likely effect of a change in circumstances can include any issues of concern for your children. For example, some children may have a very close relationship with their grandparents. It is common for grandparents to take an active role in childcare arrangements, with many doing school collections and perhaps helping with homework. If there is any change in your children’s living arrangements this may impact on their relationships with the wider family circle with whom they may have strong attachments.
The risk of harm
If there are any risks that your children could suffer harm at the hands of the other parent, then that must be considered.
This is a delicate area, as someone with an alcohol or drug problem may be capable of looking after children if they are getting help and are refraining from taking or being under the influence of alcohol or drugs when they see their children.
You may have concerns that your former partner has mental health problems. Then, if they are getting help, complying with treatment and taking medication, then there may be little risk of any harm occurring. With some mental health conditions, issues may ebb and flow and this would need to be kept under careful review.
It is important to remember that preventing children from seeing a parent can cause the child emotional distress. Often children will blame themselves, feeling that they have done something wrong if they are not afforded the opportunity to see both their parents.
You should talk to your solicitor about how any risk could be minimised, and if there are safeguarding measures that could be put in place to keep your children safe, such as having someone you trust supervise contact. If alcohol or drugs are typically an issue at certain times of the week, such as Friday or Saturday evenings, then you may want to schedule contact to avoid those times. This would minimise the risk of the children being exposed to those potentially harmful behaviours. With mental health problems, you may find it helpful to have regular face-to-face conversations with your former partner. This could be at contact handovers. Often you may be able to spot if they are struggling with their mental health.
It is important that any concerns of harm or potential harm are based on a genuine belief and are not in any way exaggerated. If the court feels that contact is being stopped or restricted by a parent for no valid reason, you could be deemed to be ‘implacably hostile’. The court takes a dim view of this type of behaviour and can even order the children to live with your former partner.
A first step is to discuss the issue with your former partner, to see what arrangements you would both like and you may be able to come to an agreement amicably.
It is wise to consider in advance what you envisage on a daily basis. Some couples find it helpful to plan a fortnightly arrangement rather than just weekly. You should also discuss how special occasions such as birthdays, Christmas, communions, Father’s and Mother’s Days will be spent as well as plans for school holidays.
Even if you do agree, it is still advisable to have this formalised in writing by your solicitor to ensure it is legally binding. This will help minimise future disagreements, for example if either of you move away, marry or move in with a new partner.
If you are unable to agree with your former partner, you may find that mediation will help. An independent mediator can assist you both in identifying the issues and reaching a resolution through discussion.
Settling a dispute in court
If you still cannot agree then we can assist you in applying to the family court where a judge will make an order stipulating your children’s living arrangements, placing the welfare needs of your children first. In doing so they will consider the factors in the ‘welfare checklist’ highlighted above.
We recommend that you obtain expert legal advice as soon as possible in order that the welfare interests of your children’s future are best protected, and that you are aware of the legal considerations to be taken into account when thinking of the future arrangements for your children.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.