It goes without saying that going through a divorce is an incredibly difficult experience. Not only will you be dealing with the emotional fallout of separating from your partner, but there are also a wide range of practical arrangements that need to be organised – including who your children are going to live with.
Deciding where your children will reside following a divorce is an incredibly important decision and, as you might expect, passions frequently run high. Depending on your circumstances, coming to an agreement with your former partner regarding where your children will live may be relatively simple, or incredibly complex.
Fortunately, in situations where a divorce with children becomes contentious, there are various options available that will help you to reach a resolution that is in everybody’s best interests, not least your children’s.
Your legal rights as a parent during divorce
The default legal position is that both parents have Parental Responsibility for their children. People with Parental Responsibility are in charge of making important decisions about a child’s life, such as where they will live, who they spend time with, where they go to school and whether they have a religious education.
Under law, separating parents with Parental Responsibility have equal rights with regards to who the children will live with. This means that separate arrangements need to be made, either in the form of a voluntary agreements, or through a Child Arrangement Order.
Making child arrangements voluntarily
If you and your former partner are able to agree on who your children will live with, there will be no need for the courts to get involved. Generally, both you and your former partner, with the assistance of your respective solicitors, will be free to make child arrangements between yourselves from the outset of the divorce.
Making a voluntary agreement tends to be the best option for both parents and children, as it avoids the need for the Courts to get involved and is unlikely to lead to any disruptive disputes. A collaborative approach is also more likely to lead to a resolution that is in both parent’s best interests, rather than being one-sided.
If you cannot immediately agree on the finer details of your children’s living arrangements, then there are still a number of options available that will still prevent you from having to go to court.
Constructive Negotiation involves both you and your former partner, with the assistance of your solicitors, engaging in round-the-table discussions geared towards reaching an agreement that suits both parties.
Family mediation will see both you and your former partner meet with one another, alongside a neutral family mediator. Over a series of meetings, the mediator will help you to identify the issues that are preventing you from agreeing where your children will live and use problem-solving techniques to help you reach a resolution.
Collaborative law is governed by a Collaborative Agreement, signed by your, your former partner and your solicitors. This commits everyone to work towards a settlement at their own pace and ruled out court intervention. A collaborative agreement also prevents the solicitors from acting for their clients in court proceedings, which means everyone is fully committed to reaching a positive resolution.
Applying to a family court for a Child Arrangement Order
If you and your partner are still unable to come to an agreement after carrying out mediation sessions, or Constructive Negotiation, then it may be necessary to apply for a Child Arrangement Order.
A Child Arrangement Order is applied for if an amicable parenting plan cannot be agreed between yourself and your former partner. It allows the Court to rule over where your children will live, as well as how much time they will spend with each parent and any other contentious parenting issues.
Either you or your former partner are able to make an application for a Child Arrangement Order. The application is made directly to court, which means it can often be a lengthy process – especially if the situation is particularly contentious. You can expect the process to take several months, but this will ultimately depend on your individual circumstances.
Before you are able to apply for a Child Arrangement Order, you will need to have attended a Meditation Information and Assessment Meeting (MIAM), or a valid alternative, to confirm that the matter cannot be resolved amicably.
There is a court fee for making an application, which you will need to keep in mind if this is the only viable approach to resolving the issue.
Letting your children decide where to live after divorce
If the courts become involved in your divorce, protecting your children’s best interests will always be their primary concern. This means that the court will always look to consult the children to find out what their wishes and feelings are.
This does not mean that your children will be explicitly asked to choose between you and your former partner, nor does it mean that what your children say will be the deciding factor. It simply helps the Court to build a full picture of the situation before they come to a decision on who they should live with.
More weight will be placed on the desires of older children and, when your child reaches the age of 16, they will legally be able to decide where they want to live – unless there is an existing Child Arrangement Order in place. A Child Arrangement Order is valid until the child turns 18.
Varying child arrangements after divorce
If you have made an agreement with your former partner regarding where your children should live, that doesn’t mean that both of your circumstances might change in the future.
If either of your circumstances change to such an extent that it would have an effect on where your children will stay, you would be well advised to work with an expert family law solicitor who can help to clarify what your options are moving forwards and whether you can change a prior agreement, such as a Child Arrangement Order.
Access and contact for non-resident parents
Non-resident parents (those who do not live the child) will still have a number of rights and responsibilities towards their children. A non-resident parent will still hold parental responsibility, which means they will still have a right to access and contact their children.
Depending on whether you have made a voluntary agreement, or a Child Arrangement Order is in place, the amount of time your child spends with each parent, and the practical details of what contact is appropriate will vary.
If you are the non-resident parent and you are being denied access to your children, then it may be necessary to go to court. From here, the court will rule on whether you are being unfairly denied access, taking the welfare of your children into consideration. From here, the court may sanction a contact order.
If you are the resident parent and you need to stop your former partner from seeing your children for their safety, you can make an emergency Child Arrangements Order application if you don’t already have an agreement in place. If you do have an existing Child Arrangement Order, you can make an emergency application to have its terms altered.
Who gets the house in a divorce with children
Deciding what happens to the family home during divorce when you have children can prove to be an incredibly contentious issue. Afterall, its likely to be the most valuable asset in the marriage.
It’s possible to decide between you and your partner who will continue living in the family home as a part of a voluntary agreement, but this is not always possible.
Where you are not able to agree on who should live in the family home, the court may sanction the immediate sale of the property, a deferred sale of the property, or the transfer of the property to one party’s sole name with a lump sum paid at the same time. This will all be context dependent.
Need help deciding what happens to your children during divorce?
At Sharp Family Law, we have a dedicated team of family law experts, who have a wide range of expertise with regards to child and parenting law.
Our team can help you during initial negotiations, support you during any court proceedings and advise you in relation to any changes you need to make to existing arrangements.
For pragmatic, constructive and sensible advice on any aspect of child and parenting law, please contact your local team in Bath or Bristol.