You may be relieved, devastated or resigned about the end of your relationship with your husband or partner, but your children’s relationship with their father will continue, in some form, for the rest of their lives.
Despite the social shifts and changing expectations of recent decades, mothers are still seen as natural caregivers by many family court judges and society at large, especially when children are young, and so it is mothers who most often become the ‘resident parent’ following divorce or separation. The children remain with Mum while Dad moves out, becoming the ‘non-resident’ parent.
If the father is unhappy with this arrangement, he can ask the courts to intervene. A judge will consider the circumstances and issue a ‘child arrangements order’, setting out which parent the youngster will live with and when they will see the other.
Family law is gender-neutral and fathers can be resident parents too. But they remain the exception rather than the rule.
Do you have parental rights as a mother? In a way. The absent parent must pay you child support until the child’s 18th birthday, although financial support of different kinds can, of course, continue beyond that point.
Child support is a mandatory, legal requirement, intended to help ensure you as the parent with day-to-day care of the children have sufficient funds to meet their needs. The amount you ex will pay varies according to circumstance, of course – his salary being the biggest and most obvious limiting factor.
As the mother, you have a more certain legal status than the father if you and he were never married. You automatically hold ‘parental responsibility’, meaning you are entitled to a say in important matters, such as the schools they attend or the medical treatment they receive. This applies even if the father does take on the role of resident parent following separation and it is you move out.
By contrast, unmarried fathers do no automatically receive parental responsibility. You as the mother must consent to their inclusion on the child’s birth certificate. If you do not, they will have to prove to a family court that they are, in fact, the biological father.
The best interests of the child
It is important to understand that, contrary to common belief, parents do not hold legal ‘rights’ as such 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.”
Those best interests determine the extent to which your children’s father will be involved in their lives. Unless there is a very good reason otherwise, the family courts generally consider a healthy relationship with their father to be beneficial to the welfare of children, and actively promote this. There is, in fact, a legal presumption in favour of the involvement of both parents following divorce or separation, meaning it will be the default approach unless there a good reason otherwise, such as a risk of harm to the child.
Time with both parents
Most divorced or separated couples agree between themselves when Dad will see the kids. But this can be challenging if the marriage ended on bad terms and the relationship is strained. In those circumstances, the family courts can intervene and draw up a schedule for visits by the non-resident parent. Typically, this will include a mix of visits on weekdays, at weekends and during school holidays.
Time spent with the children is called ‘contact’ in family law. There are different forms of contact between children and the 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.
The family courts will intervene again if one parent fails to honour the schedule or makes announcements that could interfere with contact. For example, if you as the mother plan to relocate a long distance from the children’s father – for example, to another country – he may go to court and argue that the move would prevent him from seeing the children regularly. You would then need to demonstrate to the judge that the benefits the children would receive from the relocation would outweigh the loss of time with their father. If you cannot do so, the judge will not grant permission for the move because it would not be regarded as in the best interests of your children.
At the more serious end of the scale are rare ‘change of residence’ orders. These are
declarations that that the children should move, leaving the parent they are currently with and moving in with the other. Courts are reluctant to issue change of residence orders because they mean major disruption to the child’s life, but judges may conclude that they are only remaining option in some circumstances – for example, repeated and prolonged attempts by the resident parent to hinder the children’s relationship with the other.
An expert family lawyer can advise: contact us today for guidance on your own particular circumstances.