Family law legal advice

In order to help you understand what child custody law governs, we thought we would put together a short guide about some aspects of Child Custody law.

What is child custody law?

Child custody law determines who should be responsible for the care and charge of a child after a divorce or separation. It’s actually now more commonly referred to as child residency. This indicates where the child/ren’s main residence is.

Joint Residency

The good news is that most child residency court cases end amicably. Usually the outcomes are either agreed residency or joint residency. Joint residency is of course the preferred outcome, as it means the child can spend an equal amount of time with the parents, something that’s in the best interests of most children. It also allows both parents to be part of any decision-making which may affect the child.

By giving both of the parents an equal share in the physical care of their child, all of the legal rights connected to responsibilities and obligations to the child are split. Therefore it can be a very balanced situation.

However, if the parents can’t decide on what living arrangements are best for their child, the family courts have to decide for them.

Disputes

A court decision is ultimately based on what is best for the child. That’s why in disputed cases each parent is individually assessed before a decision is made on which parent should be given custody of the child. Sometimes both parents will be deemed suitable and have to share the residency.

As part of the assessment, the court may also consider whether maintenance payments are due from the non-resident parent, and what level of contact they are allowed.

However, it’s very important to remember that the court has no preference as to which parent should be the one with whom the child should live. The decision is always based on which parent shows they are most capable of meeting the child’s needs. Many of these disputes come about because couples can’t agree on what the best arrangements are for their children.

Currently, couples in dispute over arrangements for their children must seek and explore mediation before a court will consider an application. Mediation can assist the parties in reaching agreement that is best for them in a much less adversarial way. It can help avoid any bitter disputes in a family court. It can also be ultimately less expensive.

Most custody disputes involve the child’s mother and father, but in some cases, a third party, such as a grandparent or sibling, can seek custody. Such third parties will usually require the courts permission first before they can apply. In some situations the third party’s involvement will arise because of a parent’s death or incapacity.

The Assessment

In the event that a dispute goes to family court, the court will conduct an evaluation of three core elements:

  • a parent’s capacity for parenting
  • whether a parent can meet the child’s development
  • wider family and environmental factors

This involves assessing a range of elements. For parental capacity, the court will look at:

  • basic care
  • ensuring safety
  • emotional warmth stimulation
  • guidance and boundaries
  • and stability

Wider factors normally include:

  • family history
  • extended family
  • housing
  • employment
  • income

The evaluation is normally done by interviewing parents, or carers, assessing the whole family, observing the parent-child interacting in various situations, and of course, interviewing the child themselves. The interviews are usually carried out by independent assesors appointed by the court.

Unusual Circumstances

In rare circumstances, a parent may be permanently excluded from having any access to their child whatsoever. However, the court can change that decision at any time, for instance if the parent’s circumstances change. This means the parent is able to re-apply for access at any time. Once the application is made, the court will examine evidence and re-assess the parent.

Changing Custody

Changing a child’s residency arrangement is possible, as there are many factors that may affect a change to the custody arrangements. Relocation of a parent for instance, or change in employment, or how the child is integrated into a new environment or family. In order to make a change, the parent seeking the change will need to submit evidence of how any of these factors could affect the stability of the child.

We hope that some of the information above will assist you. If you need any further help and need child custody advice, you can call us on 0203 002 4898 to arrange to speak to our specialist family lawyers. You can email us at customerservices@wetalklaw.co.uk.

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