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Divorce and separation - children: 21 FAQs
- What are the rules if only one of us is the child’s parent?
- What are the rules for adopted children and foster children?
- Do we have to get a court order saying what will happen to the children?
- How can we work out a fair arrangement?
- How can I make sure matters are resolved quickly?
- How does a judge decide which parent a child will live with?
- Can a child live part-time with each parent?
- If circumstances later change, can I get the arrangements changed?
- What rights do I have to see and contact a child living with my ex-spouse?
- Do I have the right to see a child living with my ex on special occasions, such as birthdays and Christmas?
- Do other members of my family, such as my parents, have a right to contact with a child of mine living with my ex-spouse?
- What can I do if my ex-spouse will not let me see the children?
- Can I stop my ex seeing my child?
- Can I have a say in how my children are brought up even if they live with my ex-spouse?
- Can I stop my children who live with my spouse being taken to live abroad?
- How can I stop my ex-spouse’s new partner replacing me in my child’s eyes?
- What can I do if my ex doesn’t want to have any involvement with the children any more?
- How are maintenance payments for my children worked out?
- What can I do if my ex doesn’t pay the agreed child maintenance?
- How can I protect my child’s financial interests when I get divorced?
- How can we minimise the upset our divorce proceedings cause our children?
1. What are the rules 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, then the child is treated as a ‘child of the family’. This means that if you separate, the child might continue to live with either parent, and the other parent could be ordered to pay child maintenance. The key issue is what would be in the child’s best interests.
2. What are the rules for adopted children and foster children?
Adopted children are treated in the same way as natural children.
Foster children are not ‘your’ children. Normally 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 who 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?
No. In many cases, a divorcing couple will simply agree among themselves what will happen. However, the court must be told what your plans are, and will consider whether they are in the children’s best interests.
There are restrictions on taking a child out of the country (see 15) and changing a child’s name.
4. How can we work out a fair arrangement?
Your primary concern should be what is in the child's best interests, but you will of course want to take into account your own individual circumstances and feelings.
There are many different models for sharing care of the children, from the children living with one parent and seeing the other at weekends, to the children dividing their weekly time between their parents more equally. Which is right for your family depends on your circumstances ie whether you both work; where you both live and who has historically been the primary carer for the children.
Financial arrangements should be put in place to provide for the child's support (see 18). Separate financial arrangements should also be made for the division of the family assets and for any maintenance payments from one ex-spouse to the other.
It should be borne 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 I make sure matters are resolved quickly?
Ideally, you and your spouse will be able to reach agreement among yourselves. This can be done as quickly as you are able. (The court will review what you are proposing for the children as part of the divorce proceedings, but is unlikely to object provided what you are suggesting is reasonable.) 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 the parents cannot resolve matters among themselves, it may be possible for them to reach agreement with the assistance of family mediation. This can be both faster and more cost-effective than going to court.
Otherwise, it will be necessary to apply for the 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 process involves various stages. Again, the process will be quicker if the parents are able to reach agreement during the initial conciliation appointment.
6. How does a judge decide which parent a child will live with?
The key consideration is what is in the child’s best interests. The court will take into account various factors, including the child’s own wishes and the ability of each parent to look after the child.
7. Can a child live part-time with each parent?
Yes. The parents can agree this among themselves, and the court will almost always approve this.
However, if the parents cannot agree among themselves, the court will make an order determining the issue.
8. If circumstances later change, can I get the arrangements changed?
Yes, you can apply to the court. If the court 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.
9. What rights do I have to see and contact a child living with my ex-spouse?
You and your ex-spouse can reach agreement between yourselves as to what contact rights you have. 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 at any time apply to the court for a ‘contact’ order. The court’s decision is based on what the court thinks is in the best interests of the child, which will almost always include some contact for the non-resident parent. Typically, you might be granted regular weekly (or fortnightly) contact.
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 from your ex, 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 ex 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. Your ex might also 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 (see 9).
11. Do other members of my family, such as my parents, have a right to contact with a child of mine living with my ex-spouse?
Other members of your family do not automatically have any rights to see your child. However, the court may allow them to apply for a contact order (see 9). As long as the court considers this to be in the child’s best interests, the application is likely to succeed.
12. What can I do if my ex-spouse will not let me see the children?
If you have not already been granted a contact order (see 9), you can apply to the court for one.
If your ex continues to stop you seeing a child despite a contact order, you can go back to the court. In theory, the court can then take action against your ex for breaching the order: for example, the court could fine or imprison your ex. In practice, the court is usually reluctant to do this, as it is unlikely to be in the interests of the child.
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. Crucially, you must take action rather than allowing non-contact to become the status quo.
13. Can I stop my ex seeing my child?
It is usually considered to be in the child’s best interests to have some contact with the non-resident parent. This is not changed by, for example, your own feelings about your ex.
If there is a genuine reason why it is not in the child’s interests to have contact with your ex – 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.
14. Can I have a say in how my children are brought up even if they live with my ex-spouse?
Yes. You continue to have parental responsibility, and a right to a say in how your children are brought up. If you cannot reach agreement with your ex, 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 what is in the child’s best interests.
15. Can I stop my children who live with my spouse being taken to live abroad?
As you retain parental responsibility for your children, your spouse is legally required to obtain your permission or a court order to take the children to live abroad. Your spouse is, however, generally allowed to take the children abroad for holidays of up to 28 days.
If you are concerned that your spouse plans to take your children to live abroad regardless, you can apply for a prohibited steps order to stop your spouse taking your children abroad at all. You should note, however, that your spouse 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-spouse’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 as well. You should try to focus on your own relationship with the child, rather than ‘competing’ with the new partner.
An issue 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 are entitled to object to this, and can take court action if the mother insists. As always, the court’s decision will be based on what is in the child’s best interests, but usually the court will not allow the change of name.
17. What can I do if my ex doesn’t want to have any involvement with the children any more?
You cannot force your ex to be involved with the children (apart from taking steps to ensure that any child maintenance is paid). Indeed, if your ex 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?
The Child Support Agency (CSA) has a formula for calculating the amount of maintenance that the "non-resident parent" must pay to support children. See the Child Support Agency website or consult your solicitor for details.
The amount can be reduced if the non-resident parent has other children to support or extra costs. There are also a number of other circumstances in which the CSA will vary the level of maintenance: for example, if a child spends more than one night a week with the non-resident parent. It is a good idea to take advice before agreeing a level of maintenance.
In most cases either parent can apply to the CSA to assess the level of maintenance to be paid. This will override any agreement between the parents.
In certain circumstances, either parent can apply to the courts to "top-up" the level of maintenance. For example, to contribute to the cost of private education.
19. What can I do if my ex doesn’t pay the agreed maintenance?
Normally, child maintenance is under the control of the Child Support Agency (CSA), and it is up to the CSA to take action to enforce payment. This means that you cannot generally take court action yourself, but must act through the CSA.
Where child maintenance is paid under a court order – as can be the case, for example, with wealthy parents – you may be able to go to court if your ex fails to pay the required maintenance. Depending on the circumstances, the court can grant an appropriate order: for example, requiring your ex’s employer to pay the child maintenance directly to you.
It is a good idea to take advice before agreeing a variation.
20. How can I protect my child’s financial interests when I get divorced?
From the start, try to ensure that the 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 large as the level required by the Child Support Agency’s formula (see 18). 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. Consider asking your ex to take out suitable insurance policies, and to make provision in his or her will for the benefit of the child. If your spouse does die, 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. (Read more about wills.)
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 ex 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 divorce proceedings cause our children?
The more you can agree among yourselves, the better. Ideally, you should agree all the arrangements for the children without the need for any 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 the 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 on the internet, aimed both at parents and at children: for example, at the Child and Family Court Advisory and Support Service (CAFCASS) website.
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