If you are the parent who moves out following divorce or separation, losing day-to-day contact with your children is often the biggest upheaval – and in the great majority of cases, it is fathers who pack their bags and head out the door.

Your relationship with your wife or partner is over. You may be relieved, devastated or resigned but leaving your children is another matter entirely Your relationship with them is not over: it will – or at least should – continue for the rest of your lives. But how do you ensure your connection continues to grow now that you are no longer living under the same roof? It’s not always easy and be a genuine struggle if your relationship with your ex ended on bad terms.

Parental responsibility

While it is true that home team advantage does lie with the ‘resident parent’ – the one the children continue to live with – non-resident fathers normally do retain parental status in law. Provided you are named on the child’s birth certificate, you will hold parental responsibility. This means you are legally the children’s father and so you are entitled to a say in important matters, such as the schools they attend or the medical treatment they receive.

If you were married to the mother at the time your children were born, you acquired parental status automatically. But if you were not, the situation is more complex. You can still be named as the father on the child’s birth certificate if the mother consents, but what if they do not? Perhaps your relationship with them completely broke down. Then you will need to need to the courts for a declaration of parentage. If this is granted, the General Register Office will then amend the certificate.

The best interests of the child

It is important to remember, however, that contrary to common belief, parents do not hold legal ‘rights’ in relation to their children. Instead, under English family law, the best interests of the children are the focus and the primary factor whenever decisions are made.

This principle is derived from the United Nations Convention on the Rights of the Child from 1989. This declared that:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Fortunately for divorced and separated fathers, family courts in England and Wales normally take the position that a continuing relationship is in the best interests of the children. There is a presumption in favour of this, meaning it will be the default approach unless there a good reason it should not be allowed, such as a risk of harm to the child.

Most divorced or separated couples agree between themselves when and for how long the father will see the children. But this can be difficult if the relationship ended on bad terms and the former couple are at loggerheads. It is not uncommon for a parent who feels angry or slighted to refuse time with the children. Fathers in those circumstances will need to apply to the family courts for a ‘child arrangements order’. As the name suggests, these concern living arrangements for the children: they specify the parent the children will live with and they set down when, and for how long, they will see the other parent.

Child arrangements orders replaced older ‘residence’ and ‘contact orders’. Time spent with the children is called ‘contact’ in family law.

There are different forms of contact between children and a ‘non-resident’ parent, who no longer lives in the former family home. It may be ‘direct’ –in person, on visits or holidays – or ‘indirect’: for example, by email, phone or text messaging. It may take place during the day or involve the children staying overnight.

Typically, the family courts will draft a contact schedule for parents in dispute, with a mix of visits on weekdays, at weekends and during school holidays.

Residence orders

Despite the social shifts and changing expectations of recent decades, mothers are still seen as the natural caregiver by many family court judges and society at large, especially when children are young, and so they most often become the resident parent following divorce or separation. The children remain with them while the father moves out to begin a new life elsewhere.

But attitudes are finally changing, albeit slowly, and an increasing number of family court judges have begun to recognise that fathers can be competent caregivers too. If a Dad in dispute with ex-partner applies to be the resident parent, courts will consider the extent to which they were involved in the child’s day-to-day life before the end of the parents’ marriage. Did they take them to school or sports days? Did they go parents’ evenings, make breakfast or cook dinner for them?

For most fathers, the answer will be yes, even if they have a demanding job, and that will count in their favour, but a very detached and remote father may have a harder time persuading a court they should be the resident parent.

As ever, before issuing a child arrangements order in favour of a father the courts will carefully consider the best interests of the children involved. Their welfare is always the primary consideration.

In some circumstances, the family courts may opt for a more drastic intervention: a ‘change of residence’ order. These are declarations that that the children should move, leaving the parent they are currently with and moving into the home of the other.

Change of residence orders are, by definition, disruptive, but can be the only remaining option to protect children – for example, if the mother’s behaviour has begun to put their welfare at risk.

Mothers who repeatedly prevent or hinder contact with the father or otherwise undermine the father’s relationship with his children may be issued with change of residence orders. ‘Parental alienation’ is typically regarded as a significant breach of a child’s right to a relationship with both their mother and their father.

An expert family lawyer can advise all these matters: get in touch for advice and guidance on your personal circumstances.

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