Divorce or
legal separation can be an upsetting and stressful time for all parties
involved, but this can be made even harder if there are children in the
equation. While the couple divide up assets, sort out any alimony payments and
think about who lives where; there may also be custody arrangements to sort out
if you have any children under the age of 18.
Some couples
are able to come to an amicable custody agreement on their own, but in some
cases they may need to hire a family lawyer
if one partner is being difficult,
or if there is a lot of animosity which requires family mediation. A divorce
lawyer can help defuse any conflict, and be on your side when it comes to
working out the best solution for any children involved. If you’re going
through a divorce or separation, and want to know more about how a lawyer can
help with any custody issues, see our handy guide below.
What is custody?
Child
custody is the legal term used to describe the guardianship of a child by a
parent, other family member or legal guardian. There are several different
types of child custody, which we will discuss in more detail below.
Legal custody
This type of
custody means having the rights and obligation to make important decisions
about a child’s upbringing, including their schooling, medical decisions and
religious upbringing. In the majority of cases, both parents will be awarded
legal custody after they divorce or separate, meaning they will have to agree
when making such decisions. One parent can take the other to court if they feel
they are being excluded from the decision making process, in which case the
court can reinforce the custody agreement.
Physical custody
Physical
custody covers where the child lives; either with one parent for the majority,
or all, of the time, or in some cases there will be joint physical custody;
when the child’s time is split equally between both parents. Joint physical
custody works best when both parents live within a reasonable distance of each
other, if this is not the case, or if there is another reason why one parent is
less able to physically care for the child, the other will be awarded sole
custody or primary physical custody. The parent with whom the child primarily
lives is known as the custodial parent, and the other parent may be granted the
right to visitation or short amounts of physical custody, e.g during school
holidays.
Sole custody
Sole custody
can refer to either legal or physical custody, and is usually awarded to one
parent if the other is deemed unfit to care for the child; for example due to
alcohol or drug problems, or neglect. In many cases, one parent may be awarded
sole physical custody, but the other parent will still retain joint legal
custody and generous visitation rights. A child custody lawyer can assist you
if your partner is trying to obtain sole custody and you have reason to believe
that this is unfair (for example if you live nearby and there are no issues of
abuse or neglect).
Joint custody
Joint (or
shared) custody can be physical, legal or both, and refers to how parents
co-parent their children once they are separated. Some parents are able to work
out a joint custody agreement between themselves, or if things have become
difficult or hostile, a family lawyer or court can come up with an agreement on
the parent’s behalf. Joint physical custody arrangements can take many forms,
including children spending alternate weeks at each parent’s house, alternating
stays each year or every few months, or spending weekdays with one parent and
holidays and weekends with another.
The type of
joint custody arrangement that suits you is a personal choice, and it can be
very beneficial for children to have quality time with both parents. However,
there can be difficulties, such as regularly uprooting children to move from
house to house, or if one parent starts to make sharing joint custody difficult
or restricting access to the children.
Negotiating custody
Every
custody situation is different, and some may be a lot more difficult to
negotiate than others. Courts and lawyers will always act in the best interests
of the child, and their needs will determine how the custody is arranged.
Emotions can run very high during a divorce or separation, but support from a
family lawyer can help parents put aside their own feelings and act in the best
interests of the child or children; a service such as family mediation can also
make this easier.
If custody
negotiations reach court, then several factors will be assessed to decide what
is the best outcome for any children involved. These include; the role each
parent has played in the child’s life since birth, how their situation will
change (if at all) going into the future, any personality or behavioral
concerns regarding either parent, and the personal preference of the child.
Child support
The payment
of child support is another issue which frequently comes up during custody
arrangements, and in most cases the parent with a lesser amount of physical
custody will be legally obligated to pay financial support towards the child’s
upbringing. This may not be necessary if parents share joint custody, but there
are cases when you will have to legally pay child support, even if you have no
contact with the child.
Some parents
choose to negotiate child support themselves privately, in what is known as a
family-based arrangement. If you cannot agree on an amount, or are having
trouble receiving payments from your ex-partner, then you may need the help of
a family lawyer or the Child Support Agency. A lawyer can help assess child
support cases and file documents, calculate the amount of child support that
needs to be paid, negotiate on behalf of their clients, and protect their best
interests during court proceedings.
The amount
of child support that needs to be paid is calculated based on the non-resident
parent’s income, and there are further factors to take into consideration, such
as how many children the non-residential parent pays child maintenance for, how
often the child sleeps at their residence, and if the non-residential parent or
their ex-partner are claiming child benefit.
Potential custody issues
It’s natural
for both parents to want any custody agreement to be as straightforward and
stress free as possible, but unfortunately issues can arise, whether that’s
failure to receive child support or if one parent decides to move away. Below,
we will look at some common issues in more detail, and how a solicitor can
help.
Failure to pay child support
Failure to pay
child support can result in payments being forcibly deducted from benefits or
earnings, bailiffs taking items in lieu of the money, or being disqualified
from driving. A family lawyer can help you assess whether it’s best to take
things to court, or let the Child Support Agency handle the situation. They can
also arrange mediation to see if both parents can come to a peaceful agreement.
Violating the custody agreement
Many custody
agreements are legally finalised by a court, and a breach of the custody agreement
can have serious consequences. Violations can include, one parent keeping the
child at their residence for longer than the agreed visiting time, failing to
inform the other parent of the child’s whereabouts, denying visiting rights,
taking the child out of the country without consulting the other parent, or
making legal custodian decisions without informing the ex-partner, such as
medical care or where to send the child to school.
Violating a
custody agreement can lead to contempt of court, and the parent in breach of
the order may lose their custody or visitation rights. A child custody lawyer
can assist you in making sure the court order is reinstated, and help with any
other legal issues you may have.
One parent is moving away
If one
parent decides to relocate, it can have a big effect on the existing custody
agreement, especially if the parents share joint custody. If the parent with
primary physical custody is moving, the non-custodial parent may argue that the
move is not in the best interests of the child, and you may have to return to
court to figure out a new custody agreement. If either parent wants to move
away, then at the very least this needs to be discussed with the other before
any decisions are made, to ensure you are not in breach of the custody
agreement.
If you’re in need of a divorce solicitor or help
with any family law or custody issues, get in touch with Hawley and Rodgers.
Our expert child law solicitors can help you negotiate a range of issues,
including custody agreements, civil settlements, care arrangements, child
support payments and more. For more information about any of our services or to
make an appointment, give us a call today or
visit our website.
