21 FAQs about children following divorce or separation.
1. Where will a child live if we separate or divorce if only one of us is the child’s parent?
If you have both been treating a child as if he or she is your own, the child is a ‘child of the family’. If you separate, the child will usually continue to live with the natural parent but this is not always the case. The step-parent could be ordered to pay child maintenance but usually only if the other parent is failing to provide for the child. The key issue is the child’s best interests.
2. What are the rules for adopted children and foster children if we separate or divorce?
Adopted children are treated in the same way as natural children.
Foster children are not ‘your’ children. Often any foster children would be removed from your care if you are going through a separation or divorce, but this would be a matter for the local authority that placed the child with you rather than the courts.
3. Do we have to get a court order saying what will happen to the children when we divorce?
No. In many cases, a divorcing couple will simply agree among themselves what will happen. If you cannot agree among yourselves you may need to involve the court.
There are restrictions on taking a child out of the country and changing a child’s name unless it can be agreed between you.
4. How can we work out a fair arrangement for our child when we divorce or separate?
Your primary concern should be the child’s best interests, but you will of course want to take into account your own circumstances and feelings.
There are many different models for sharing care of a child, from the child living with one parent and seeing the other at weekends, to the child dividing their weekly time between their parents more equally. Which is right for your family depends on your circumstances: whether you both work; where you both live; and who has historically been the children’s primary carer.
Financial arrangements should be put in place to provide for the child’s support. Separate financial arrangements should also be made for the division of the family assets and any spousal maintenance payments from one of you to the other.
Keep in mind that the child’s needs may lead to an apparently unfair arrangement. For example, in many divorces one parent and the child continue to live in the family home, while the other parent has relatively limited time with the child, lives in inferior accommodation and pays continuing maintenance. This may be an inevitable consequence of the priority that must be given to the child’s welfare.
5. How can we resolve the arrangements for our children quickly when we divorce or separate?
Ideally, you should reach agreement among yourselves. This can be done quickly.
If one parent is stalling, it may be worth pointing out that resolving matters quickly is in the children’s best interests, and that financial issues – which may underlie any dispute – can be dealt with separately.
Even if parents cannot resolve matters among themselves, a family mediation service can help to provide a solution. This can be faster and more cost-effective than going to court.
Otherwise, you must apply for appropriate court orders covering who a child will live with, what contact rights the other parent will have and any specific issues or prohibitions.
The court process involves various stages, starting with a mediation information and assessment meeting to see if mediation can help. Again, the process will be quicker if the parents can reach agreement during the initial appointment.
6. How does a judge decide which parent a child will live with when we separate?
The key consideration is the child’s best interests. The court will take into account various factors, including the child’s own wishes and each parent’s ability to look after the child.
7. Can a child live part-time with each parent after a divorce or separation?
Yes. The parents can agree this among themselves.
However, if parents cannot agree among themselves, either parent can apply to the court to make an order determining the issue.
8. If circumstances change will I be able to change the arrangements we agreed for our child when we divorced?
You can apply to the court. If it considers that a change is in the child’s best interests, it can grant an appropriate order.
In practice, it would be unusual for the court to order that a child who has been living with one parent for some time should now live with the other. More commonly, you might go to court to get an order covering a particular issue, such as where the child should be educated or to enforce your rights to see the child.
The financial arrangements for the child’s maintenance can be changed to reflect changes in the parents’ circumstances. This is usually dealt with by the Child Maintenance Service rather than the court.
9. What rights do I have to see and contact a child living with my former spouse or partner?
You can reach agreement between yourselves on contact rights. This can include visits to the child in the home, taking the child out during the day, overnight stays and telephone calls.
If you cannot reach agreement, you can apply to the court for a child arrangements order (previously known as a contact/residence order). The court’s decision is based on what the court thinks is in the child’s best interests, which will almost always include some time spent with each parent. Typically, you might be granted regular weekly (or fortnightly) contact and longer time in the holidays.
In some circumstances, it can be more difficult to obtain extensive contact rights. For example, if you have not been in contact with the child for a significant period of time since you separated, the court might want to minimise the disruption to the child’s established routine. It is also likely to be difficult if your child says that he or she does not want to see you, particularly if the court feels the child is old enough to make an informed decision.
10. Do I have the right to see a child living with my former spouse or partner on special occasions, such as birthdays and Christmas?
It is normal to agree that the ‘non-resident’ parent should have the right to see the child on special occasions. The other parent is usually expected to agree that you should be able to see the child for occasional longer periods, such as during an annual holiday. Specific contact rights for special occasions can be included in a contact order.
11. Do other members of my family have the right to contact my child that lives with my former spouse or partner?
They do not automatically have any rights to see your child. However, the court may allow them to apply for a contact order. As long as the court considers this to be in the child’s best interests, the application is likely to succeed. It depends on whether your time with the child is expected to include other members of your family.
12. What can I do if my former spouse or partner will not let me see the children?
If you have not already been granted a child arrangements order, you can apply to the court for one.
If your former spouse or partner continues to stop you seeing a child despite a court order, you can go back to the court. This often involves proving specific breaches of the order which can be difficult. The court can then take action against your former spouse (or partner) for breaching the order. The court can impose a fine or a work placement order or imprison your ex. Depending on the circumstances, the court can be reluctant to do this, as it may not be in the child’s interests.
This means that enforcing your contact rights can be a drawn-out and distressing process. You may need to return to court several times and keep careful evidence of how your ex is frustrating your attempts to have the agreed contact with your child. Ultimately the court can change where the child lives if they feel that one parent is preventing the child seeing the other parent, but this is an extreme conclusion and not the court’s first option.
However, it is important to take action rather than allowing non-contact to become the status quo.
13. Can I stop my former spouse or partner seeing my child?
It is usually considered to be in the child’s best interests to spend time with both parents. This is not changed by factors such as your own feelings about your former spouse or partner.
If there is a genuine reason why it is not in the child’s interests to have contact, for example, if the child is at risk or a victim of abuse or violent behaviour, you can apply to the court for an order to prevent contact. Even then the court will not usually expect there to be no relationship between a child and parent, but will look at whether safeguards can be put in place to make it safe for the child.
14. Can I have a say in how my children are brought up even if they live with my former spouse or partner?
If you have parental responsibility (for example, if you were married), you continue to have a right to a say in how your children are brought up.
If you cannot reach agreement, you can apply to the court for a specific issue order, for example, on where the child should be educated. The court’s decision will be based on the child’s best interests.
15. Can I stop my children who live with my former spouse or partner being taken to live abroad?
As you retain parental responsibility for your children, your permission or a court order is legally required to take the children to live abroad. Your ex is, however, generally allowed to take the children abroad for holidays of up to 28 days. Your ex should still seek your permission unless there is a court order that the child lives with them.
If you are concerned that there are plans to take your children to live abroad regardless, you can apply for a prohibited steps order to stop your ex taking your children abroad. You should note, however, that your ex can apply for a court order allowing the children to be relocated abroad if it is in their best interests.
16. How can I stop my ex’s new partner replacing me in my child’s eyes?
Maintaining regular contact with your child will stop the new partner replacing you. However, it will not prevent your child forming an emotional attachment to the new partner. Focus on your own relationship with the child, rather than competing with the new partner.
Sometimes issues can arise over the child’s surname. For example, when the child continues to live with the mother, the mother may want to change the child’s surname to that of her new partner.
You can object to this and can take court action if the mother insists. As always, the court’s decision will be based on the child’s best interests, but usually the court will not allow the change of name.
17. What can I do if my former spouse doesn’t want to have any involvement with the children?
You cannot force your former spouse to be involved with the children (apart from ensuring that any child maintenance is paid). Indeed, if your former spouse does not want to be involved, it is probably in the children’s best interests that he or she is not.
18. How are maintenance payments for my children worked out when we separate or divorce?
Families are expected to make their own private arrangements for child support. However, if this is difficult the Child Maintenance Service can usually help:
- They can work out what payment is due but not get involved in collection or enforcement. This can be a good option for parents who cannot agree how much payment should be.
- They can get involved in enforcing the payments. There are fees to use this service.
The Child Maintenance Service has a formula for calculating the amount of maintenance that the non-resident parent must pay to support children. A ‘basic’ rate applies for a gross weekly income between £200 and £800:
- One child 12%.
- Two children 16%.
- Three or more children 19%.
A higher, ‘basic plus’ rate applies to incomes from £800 to £3,000. Reduced rates apply if the non-resident parent has a low income or is on benefits.
The amount can be reduced if the non-resident parent has other children to support or extra costs. Other circumstances may also affect the maintenance due, for example, if a child spends more than one night a week with the non-resident parent.
You can use the Child Maintenance Options calculator to get an idea of how much statutory child maintenance would be in your particular circumstances.
19. What can I do if my former partner doesn’t pay the agreed child maintenance?
If there is already a court order in place requiring your former partner to pay child maintenance, but he or she fails to do so, you can go back to the court to ask them to enforce payment. For example, the court might issue an attachment of earnings order, so that your former partner’s employer automatically pays you. You should take urgent legal advice if your former partner stops paying maintenance.
If the court order is more than 12 months old but not from 2003 or earlier, you also have the option of using the Child Maintenance Service instead.
If you are using the Child Maintenance Service to handle payments (or the Child Support Agency for some cases set up before December 2013), you should contact them.
Take advice before agreeing to any changes to your child maintenance agreement.
20. How can I protect my child’s financial interests when I divorce or separate?
From the start, ensure that financial arrangements provide adequate maintenance for your child. If the child will be living with you, ensure that the non-resident parent’s maintenance contribution is at least as much as the level required by the Child Maintenance Service’s formula.
Take advice if there may be grounds for requiring higher payments, for example, to contribute towards private education or if your spouse has a very high income.
Think about the risks to this income. For example, if your former spouse runs into financial difficulties or remarries and has new children to support, the required maintenance payment could be reduced. If your former spouse dies, maintenance payments will stop altogether, of course.
Consider asking your former spouse to take out suitable insurance policies, and making provision in his or her will for the child’s benefit. If your former spouse dies leaving a will that fails to provide adequately for the child, take immediate legal advice. It may be possible to challenge the will so that funds are provided for the child’s benefit.
Throughout, try to respect your former spouse’s right to continue to be involved with the child and encourage their relationship, regardless of your own personal feelings. Your former spouse is more likely to be willing to provide financial support if he or she remains close to the child and is taking an interest in how the money is spent.
21. How can we minimise the upset our separation or divorce proceedings cause our children?
The more you can agree among yourselves, the better. Ideally, agree all arrangements for the children without a court order. This avoids the children having to become involved in court proceedings. Children who are asked to tell the court what they want can feel that they are being asked to choose between their parents.
Try as best you can to avoid involving children in your own arguments. No matter how badly you may feel your spouse has behaved towards you, it may well be in the child’s best interests to continue to have a civilised relationship with them.
You may find it helpful to get in touch with a suitable support group, both for your own sake and for advice on how to protect your children’s emotional wellbeing. You can find a range of helpful information online for parents and children, for example from the Children and Family Court Advisory and Support Service.
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances, and is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please seek the services of a legal professional.