Getting divorced when you have children together can be particularly tough, especially when you and your ex-spouse have different views on how the children should be raised.
Exactly what happens to your children during a divorce will depend on specific circumstances, which is why it is a good idea to familiarise yourself with different types of orders and arrangements as soon as divorce becomes a possibility.
What happens when you divorce with children?
Unless one parent poses a risk to the children, arrangements will need to be made that allow the children to spend time with both parents.
This arrangement can be informal and agreed verbally, or it can be made in writing, for example in a Parenting Agreement, or it can be made legally binding through the court in a Child Arrangements Order.
Who is responsible for children in a divorce?
The law on who is responsible for children in a divorce does tend to be quite traditional and is aimed with the childrens’ best interests at the forefront.
Mothers automatically have parental responsibility, irrespective of her marital status. Fathers automatically have parental responsibility if they are married to the mother at the time of birth or if they are named on the birth certificate.
Joint custody is usually the preferred route by the court and most parents. This means both parents will be equally responsible for the children.
How to decide child arrangements following divorce
When deciding on child arrangements after a divorce, there are a few different types of orders you can use.
Child arrangements orders
Child arrangements orders (CAO), previously known as Residence Orders and Contact Orders, are arrangements from the court that dictates which parent the child spends time and lives with.
Parents can use a mediator or solicitor or both to reach an agreement if they are not able to agree the arrangements between themselves. If both of these avenues are unsuccessful, parents can instead choose to make an application to the court who will determine the arrangements for the child.
Parental responsibility agreements
A parental responsibility agreement (PRA) is a legal document that gives a person parental responsibility without having to issue court proceedings.
They are usually made between the mother of the child and the father or step-parent, but both parents must agree to it. If there is no agreement then an application would need to be made to court to determine the issue.
Specific issue and prohibited steps orders
When couples divorce, they more often than not will have some disagreements about the upbringing of their children. In English law, a parent can either apply for a Specific Issue Order or a Prohibited Steps Order in order to allow the court to decide what is in the best interest of the child if an agreement cannot be reached.
Specific Issue Order
A Specific Issue Order (SIO) is an order from the court used to resolve disagreements between parents regarding their children.
Decisions made under a SIO can include:
- What school the child goes to
- What medical treatments the child will receive
- The religion the child will be raised under
- Any other specific issues the court has been asked to adjudicate on
Prohibited Steps Order
A Prohibited Steps Order (PSO) can be used by one parent to stop the other from doing something which affects the child.
A PSO helps to prevent many things including:
- Changing the child’s name
- The parent from moving outside the UK or relocating from the local area
- Stopping the child from seeing a specific person, such as new partners
- The parent allowing the child to undergo risky medical treatment
Special guardianship
Special guardianship is a type of family order that places the child(ren) in long-term care with someone other than the parents.
The aim of special guardianship is to:
- Secure the child’s long-term placement
- Grant parental responsibility to the special guardian
- Maintain contact with the child’s birth parents
- Enable the special guardian to have day-to-day control over what the child does
Any existing CAO automatically ends when the special guardianship order is made.
How is child maintenance decided after a divorce?
Child maintenance payments should assist in covering the child’s everyday needs, such as food, clothing and housing. Even if a parent does not see their child(ren), they are still legally obligated to pay child maintenance.
If you and your partner have an amicable relationship, it is a good idea to try and arrange child maintenance agreements with each other. This is known as ‘family-based’ arrangements.
There are no set rules to follow with family-based arrangements and you can include whatever you want as long as you both agree to the payment terms. However, it is important to remain realistic about the amount and consider the child’s needs.
If you and your partner cannot agree on child maintenance payments, you should contact the Child Maintenance Service (CMS). The CMS will use a formula to determine the amount of child maintenance that should be paid, including several factors such as:
- The income of the parent with whom the child does not live;
- The number of overnights the child spends with that parent;
- Whether the non-resident parent has other children living in their household and pension contributions.
Once the CMS has calculated how much a parent should pay, it will issue a ‘maintenance calculation’ to both parties. If both parents agree to this calculation, they can make their own arrangements for the payment. If not, a parent can instruct CMS to collect the funds on behalf of the parent who is due to receive it but this does attract a fee.
Who gets the house in a divorce with children?
There are no set rules in regards to what happens with the matrimonial home during a divorce with children, however, all decisions made by the court will be made in the best interest of the children as their welfare is paramount.
Often, the parent who is considered the primary caregiver will be entitled to the family home if this is affordable. This helps to ensure the children will be in a safe, secure and familiar environment so as to cause the least disruption to the children when their parents are divorcing.
At what age can a child decide which parent to live with after a divorce?
Once a child reaches the age of 16, they can then legally choose by themselves which parent they would like to live with.
The court can sometimes make an order requiring the child to live with a parent until they are 18, but this is very rare as Child Arrangements Order usually end when a child turns 16.
The wishes of children should always be considered when determining where a child should live, and the older the child, the more weight that will be attached to their wishes and feelings when the court determines the living arrangements.
Grandparents’ rights to see grandchildren amidst a divorce
Many people assume that grandparents have a right to see their grandchildren after a divorce, but this is not the case. Grandparents do not have automatic legal rights but there are some steps that can be taken to gain access.
The best option is to liaise directly with the parents to try and reach an agreement so see the grandchildren. If this is not possible, then mediation should be attempted.
If it has not been possible to negotiate contact either directly or with the assistance of a mediator or solicitor, then you can make an application to court for a Child Arrangements Order (CAO). The court will base their decision on factors such as the relationship with the grandchildren and how the application could affect their daily lives.
The process of obtaining a CAO can seem excessive as the court requires you to obtain permission before being able to proceed with an application for a Child Arrangements Order. This is because grandparents do not have parental responsibility and to protect the grandchildren from any unnecessary interference.
The court will consider several factors when deciding whether to give permission for grandparents to make a court application, such as:
- The nature of the application being made;
- The relationship between the grandparents and the child;
- Whether the application could harm the child and the views of the child’s parents.