Separation – What happens to the children?

Separation – What happens to the children?

Are you concerned about what would happen to your child if you were to separate from your partner?

If you are unable to reach an agreement with your partner about arrangements for where your children will live and how much time you each get to spend with them, then you can make an application to the court.  In order to have the best chance of obtaining your preferred arrangements, you should appoint an experienced family solicitor to help you with this.

At all times the court will treat the child’s welfare as the paramount consideration and an independent officer will usually tell the judge about your child’s wishes and feelings and give a recommendation about what arrangements are in your child’s best interests. Children are not usually involved although that depends on their age and understanding and some children may have their own solicitor, especially if they are old enough.

The two most common sorts of orders that the court is asked to make are:

  • A residence order, which will state with whom your child will live. It might specify both parents, which is known as a ‘shared residence order’, although this does not necessarily mean that your child will spend their time equally between the two homes.
  • A contact order, which requires the person with whom the child is living to make the child available for contact at specific times. The court can also make an indirect contact order by way of letters or cards, or it might order that a third party supervise the contact or that there should be overnight or holiday  contact over a longer period of time.

Some common questions that we are asked by separating parents include:

Q.        Does the mother automatically get to keep the children? 

A.         These days this is not necessarily the case although it often depends on how old the child is. It is still usual for very young children to remain with their mother if it is in their best interests, although it is now not a foregone conclusion and we will be able to advise you.

Q.        What if I think my partner will not let me see my children ?

A.         First, the court has to make a contact order and it can add conditions if the judge shares your concern that there may be problems. If there are then further difficulties, the court has powers to ensure that a parent complies with contact orders.

Q.        How much say will I have in things like schools, holidays etc ? 

A.         The court will take into account what you both say about these arrangements. If your child remains living with you, then your opinion as to how easy arrangements are is very important – for example getting your child to a particular school or how contact can be arranged around your working hours.

Q.        What happens when my ex gets a new partner? 

A.         An officer from the family court will want to interview any new partner to see if they get on with your child. This will help the court to decide if they are a fit person and, if necessary, the court can make orders excluding them from being involved.

Q.        My parents are concerned about seeing their grandchildren – what rights do they have? 

A.         Grandparents, step-parents and wider family members can also apply to the court to ensure that they see the children or have them to stay. These family members will need their own advice from a solicitor.

This is a very complicated area of the law and we recommend that you speak to a member of our family team as early as possible.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.