The issue of child arrangements can be one of the thorniest one that couples face while undergoing separation or divorce.
A good understanding of the custody laws is essential to navigate it and reach acceptable arrangements regarding custody.
Deciding parental responsibility
In case of a marriage breaking up, both partners bear responsibility towards the children.
However in case of an unmarried couple it is the mother who has automatic rights to the children. Unmarried fathers can gain parental responsibility if their name is present in the child’s birth certificate and the child is born post December 2013.
In such cases, fathers can also obtain parental responsibility if they have entered into a Parental Responsibility Agreement. This agreement can be entered into at any stage of the relationship or at the time of separation. A court can also order this during separation
Irrespective of the parental responsibility, the non -residential parent needs to contribute towards the financial support of their children.
Need For Approaching Courts
Parents need to go to a court only in case of disagreements between the parents. If the parents can decide mutually on where the children will live and how much time they will be spending between the two parents, there is no need to approach a court.
It can be difficult to decide the best arrangements for the children. Some perspectives to consider are :
- which of the two parents will have the most time to look after the children and spend time with them, and when
- what daily arrangements will be most convenient and suitable for the children.
- What should be the best way for the non-residential parent to keep in touch with the ex-partner regarding matters involving the children. Options include phone, emails or text messaging.
Creating A Parenting Plan
A Parenting plan is a written record of the agreement between the parents regarding the child arrangements, which can be used as a reference document later.
Making the agreement legal requires a lawyer. A family law specialist will be able to develop a ‘consent order’ that contains all details of the agreement including the children’s place of residence, time spent with each parent.
A judge will need to approve it to make it legally binding. The judge usually approves it once assured that the agreement terms are in the best interests of the children.
Child maintenance can be provided through a ‘family-based arrangement’ under which the parents can agree on the terms privately.
Legal Options In Case Of Disagreements
In case of the parents being unable to agree on the terms of the child arrangements, there are number of legal options to explore:
Mediation is a cheaper and less stressful alternative to court . A mediator doesn’t provide legal solutions but helps the process by creating a calm environment in which the parents work together to find an agreeable solution. If successful, the mediator typically prepares a ‘memorandum of understanding’, which captures the terms agreed to.
Under collaborative law, both parents have lawyers and they meet together to try and arrive at an agreement. If successful, the advocate prepares a consent order that contains the arrangement details.
In family arbitration ,, the process is similar to approaching a court but instead of a judge an arbitrator presides. Here the parties can choose the hearing takes place. Any decision of the arbitrator is legally binding.
Approaching a Court
In case none of the above methods work, then the parents may approach the courts to resolve their dispute. The court can be applied for a range of orders depending on the area of disagreement – place of residence, time spent etc. A specific issue order is also possible to address specific concerns.
The judge will first encourage the parties to come to a mutual agreement, failing which the court will issue a ruling. The court usually considers the welfare of the children as paramount and will consider several aspects including child’s feelings, its wishes, its emotional or physical needs.