Divorce and your parental rights
by Helen Bowns, Associate, and Meredith Thompson, Solicitor, Mills & Reeve
When parents separate often the most emotive issue is who the children will spend their time with, and when. Children are faced with uncertainty about what will happen to them when their parents split – will they have to change school? Move house? When will they see Mum/Dad? Who will take them to football/swimming/dance class? It is important, whatever your feelings towards your ex, that you focus on the children’s need to maintain a good relationship with both parents.
As a father, what are your rights and responsibilities?
Firstly, parental responsibility (PR). This is a legal term meaning all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his or her property. Mothers automatically have it. Fathers of children born after 1 December 2003 have it automatically if they are named on the birth certificate. For children born before 1 December 2003 fathers have PR if they were married to the mother at the time of the birth or, if not, then they can acquire it by written agreement or by application to a court. It is important that you have PR if you want to have a say in the key decisions affecting your children, namely, where they go to school, medical decisions and religious upbringing.
Secondly, where will the children live?
Most children still live with their mothers when parents separate and courts do generally favour young children living with their mothers. However, we are seeing more and more residence orders being made in favour of fathers, particularly where the mother is the breadwinner or where she is so hostile to the father and obstructive of his relationship with the children that he would be sidelined from the children’s lives if no order was made.
Shared residence orders are increasingly common where there is a genuine shared care arrangement between the parents (which does not have to mean the children splitting their time equally between mother and father).
A court will consider what is in the children’s best interests and who can best provide for their day-to-day care when making any order.
Thirdly, when will you see your children?
If the children are to live mainly with their mother, then you will want to see them regularly and secure generous contact with them (previously known as access). These days the courts accept that children should have as much contact with the parent with whom they do not live (the non-resident parent) as possible in order to maintain a strong relationship with them. Therefore, when considering what is in your children’s best interests think about how much time on a weekly basis they want or need to spend with you and whether you are in a position to offer that level of time commitment. It is important that a regime is put in place which works for both parents and the children. Of course, if you cannot agree when you will see the children then it is possible to make an application to court for a contact order.
There is a view that dads get alternate weekend contact and that’s it. While there is undoubtedly historical truth in that, courts these days are being more creative in their approach to contact arrangements. Certainly where dads can be more flexible in their working arrangements this can be reflected in the contact arrangements.
The courts have some way to go in recognising fathers as equal parents, but it is a whole lot better than it used to be.
Taking them abroad
In short, you need consent to do this. If there is no order for residence in force, taking the children out of the country without the consent of everyone who has PR for the child concerned is an offence. Where there is a residence order in place, whether in favour of the mother, father or both, then the written consent of everyone who has PR for the child is still required to take the child out of the country, unless it is for less than a month. In that case, the person in whose favour the residence order is made can take the child abroad for less than a month without the need for written consent or a court order.
To contact Helen Bowns please email: Helen.firstname.lastname@example.org or telephone: +44(0)121 456 8309. To contact Meredith, please email: email@example.com or telephone: 44(0)121 456 8382.