Divorce and separation - children FAQs

21 FAQs about children following separation or divorce.

  1. What if only one of us is the child’s parent?
  2. What are the rules for adopted children and foster children?
  3. Do we have to get a court order saying what will happen to the children?
  4. How can we work out a fair arrangement?
  5. How can I ensure quick resolution?
  6. How does a judge decide which parent a child will live with?
  7. Can a child live part-time with each parent?
  8. If circumstances change can I get the arrangements changed?
  9. What rights do I have to see and contact a child living with my ex-spouse?
  10. Do I have the right to see a child living with my ex on special occasions, such as birthdays and Christmas?
  11. Do other members of my family have a right to contact with a child of mine living with my ex-spouse?
  12. What if my ex-spouse will not let me see the children?
  13. Can I stop my ex seeing my child?
  14. Can I have a say in how my children are brought up even if they live with my ex-spouse?
  15. Can I stop my children who live with my spouse being taken to live abroad?
  16. How can I stop my ex-spouse’s new partner replacing me in my child’s eyes?
  17. What if my ex doesn’t want to have any involvement with the children?
  18. How are maintenance payments for my children worked out?
  19. What if my ex doesn’t pay the agreed child maintenance?
  20. How can I protect my child’s financial interests when I divorce?
  21. How can we minimise the upset our divorce proceedings cause our children?

1. What 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 might continue to live with either parent, and the other parent could be ordered to pay child maintenance. The key issue is the child’s best interests.

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2. What are the rules for adopted children and foster children?

Adopted children are treated 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.

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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 and changing a child’s name.

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4. How can we work out a fair arrangement?

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 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: 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 maintenance payments from one ex-spouse 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.

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5. How can I ensure quick resolution?

Ideally, you and your spouse should reach agreement among yourselves. This can be done quickly. The court will review your proposals for the children as part of the divorce proceedings, but is unlikely to object provided this 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 parents cannot resolve matters among themselves, 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 process involves various stages, starting with a Family Mediation Information and Assessment meeting to see mediation can help agreement to be reached. Again, the process will be quicker if the parents can reach agreement during the initial appointment.

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6. How does a judge decide which parent a child will live with?

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.

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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 parents cannot agree among themselves, the court will make an order determining the issue.

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8. If circumstances change can I get the arrangements changed?

Yes, 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.

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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 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 contact 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 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.

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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.

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11. Do other members of my family have a right to contact with a child of mine living with my ex-spouse?

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.

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12. What if my ex-spouse will not let me see the children?

If you have not already been granted a contact order, 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 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.

However, it is important to take action rather than allowing non-contact to become the status quo.

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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 factors such as 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.

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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 the child’s best interests.

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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. 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.

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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. 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 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.

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17. What if my ex doesn’t want to have any involvement with the children?

You cannot force your ex to be involved with the children (apart from ensuring 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.

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18. How are maintenance payments for my children worked out?

The new Child Maintenance Service (CMS) is now responsible for helping families make their own private arrangements for child maintenance. The Child Support Agency is still handling old cases (those set up before December 2013) but is no longer taking on new cases.

The CMS has a formula for calculating the amount of maintenance that the non-resident parent must pay to support children. A 'basic' rate applies if your gross weekly income is up to £800:

  • One child 12%
  • Two children 16%
  • Three or more children 19%

If your gross weekly income is £800-£3,000, the 'basic plus' rate applies to the excess over £800 (£3,000 is the highest gross that will be taken into account):

  • One child 9%
  • Two children 12%
  • Three or more children 15%

calculator on the CM options website can give you an idea of how much you can expect to receive or pay in child maintenance.

The amount can be reduced if the non-resident parent has other children to support or extra costs. There are other circumstances that may affect maintenance due, for example, if a child spends more than one night a week with the non-resident parent.

Families are now expected to make their own private arrangements for child support, however, if this is difficult there are other options:

  • The CMS can provide ‘Direct Pay’. The CMS will work out payment due but will not get involved in collection or enforcement. This can be a good option for parents who cannot agree how much payment should be.
  • The CMS can get involved in enforcing the payments. This cannot be set up within 12 months of a consent order. There is a fee of £20 to use this service.

For more information about child maintenance and support go to the CM Options website.

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19. What if my ex doesn’t pay the agreed maintenance?

If your spouse has not been paying maintenance or has stopped paying maintenance on a voluntary basis, you will need to go to court to apply for a financial order. You can apply for an order at any time before or after the divorce, provided you have not remarried.

If there is already an order in place requiring your spouse to pay 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 spouse’s employer automatically pays you. You should take urgent legal advice if your spouse stops paying maintenance.

If your spouse is refusing to pay maintenance in respect of your (joint) children who you look after, contact the statutory child maintenance service. The Child Maintenance Service has taken over from the Child Support Agency. The Child Support Agency is still handling old cases (those set up before December 2013) but is no longer taking on new cases.

Take advice before making changes to your maintenance agreement.

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20. How can I protect my child’s financial interests when I divorce?

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 ex to take out suitable insurance policies, and making provision in his or her will for the child's benefit. If your 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 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.

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21. How can we minimise the upset our 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, the Child and Family Court Advisory and Support Service (CAFCASS) website.

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