When it comes to ‘our‘ children, what does the terminology mean during separation?

25 Feb 2019

Dawn Gore, a family law Paralegal here at Trethowans with over 30 years experience answers your questions on the terminology used whilst separating or post separation.

Q: My ex says that he is going to apply for custody of our child. What does this mean?

A: Before November 1989, the term ‘custody’ was used to describe the status of the parent with whom a child lived. This outdated term was amended with the introduction of the Children Act 1989, then becoming known as ‘residence’ before being further amended by the Children and Families Act 2014. What your ex means is that he is going to seek a Child Arrangements Order that your child lives with him.

Q: The mother of my child says that she is going to deny me access to my child. How can she do this?

A: The term ‘access’ was used prior to the Children Act 1989 to refer to the arrangements for a child to spend time with the parent with whom they do not live. This term was amended by the 1989 Act to ‘contact’ but was further amended by the introduction of the Children and Families Act 2014. What your child’s mother is saying is that she is going to restrict the arrangements for your child to spend time with you.

Where possible, the arrangements for your child should be agreed between you both through discussion and negotiation, whether that is directly between you or with the assistance of professionals such as solicitors or mediators. If an agreement cannot be reached, you may have to consider an application to the Court for a Child Arrangements Order determining when your child is to spend time with you.

Q: How can I get sole residence of my child?

A: The term ‘residence’ was amended by the Children and Families Act 2014 with the introduction of Child Arrangements Orders which determine with whom a child is to live and when they are to spend time or otherwise have contact with the other parent. If it is agreed between the parents that the child lives with one parent and spends time with the other, it would be unusual for a Court to need to become involved.

However, if there is a dispute between the parents as to the arrangements for the child that cannot be resolved through negotiation with the assistance of solicitors or mediation, consideration may need to be given to an application to the Court for a Child Arrangements Order. The Court’s paramount consideration will be the child’s welfare and if it decides an Order is necessary, it will then determine with whom the child is to live and when they are to spend time with the other parent.

Q: A Residence and Contact Order was made in 2012 when our child was 4. I am moving with my child and need to change the Order. How do I do this?

A: If it is necessary to change your child’s school and/or change the arrangements for the child to spend time with the other parent, you should discuss your proposed plans with the other parent as soon as possible and try to reach an agreement. Solicitors or mediators can assist with this.

If an agreement cannot be reached, then you may need to consider making an application to Court for a Specific Issue Order allowing you to change your child’s school and an application to vary the existing Order. The Court will need to determine whether it is in the best interests of your child to move, change schools and the arrangements for him/her to spend time with the other parent. These arrangements would be specified in a Child Arrangements Order.

Separation can be an extremely difficult and emotional time, particularly when children are involved. The following websites provide a wide variety of information to separated parents to assist with the challenges that they may face when trying to move on with their life whilst helping their children adjust to the changes in their circumstances:

www.resolution.org.uk/supportingchildren

www.gingerbread.org.uk

www.sortingoutseparation.org.uk

www.separatedparents.info

www.cafcass.gov.uk

www.thehandoverbook.co.uk

Our family solicitors are regarded among the best in the South. If you are undergoing a separation and require legal advice and guidance in regards to your children, we can help. Contact Dawn Gore, family law Paralegal today on 01722 426945.

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