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Brad Pitt and Angelina Jolie’s lengthy court battle over the custody of their children is believed to have finally come to an end with the judge tentatively granting joint custody. But did you know that you can make arrangements for your children following separation without the need to go to court?

Parents can make the decision between themselves

When parents separate, they can decide between themselves when their child will live/spend time with each parent and financial support for the child without the need to go to court.

A mother automatically has parental responsibility. Fathers have parental responsibility if they were married to the mother, or if they are listed on the birth certificate (from 1 December 2003), or if they registered a Parental Responsibility Agreement with the court or obtained a Court Order. In the eyes of the law parents with parental responsibility both have equal duties in regards to their child’s upbringing. This includes making important decisions about a child, such as where they should go to school.

When parents make an agreement amongst themselves, it can be drawn up into a parenting plan or alternative written agreement.  In certain circumstances, if in the child’s best interests, the parents can instruct a Family Law solicitor to draft a Consent Order. This will make the agreement reached legally binding in case the agreement is broken by either parent. The parents can then apply for a Court Order to have the Consent Order approved.

Mediation

However, parents may not always be able to reach an amicable decision between themselves. The next step is to engage in mediation. This involves consulting with a professional mediator, who will try to help the parents reach a decision.

Alternatively, both parents can instruct lawyers to negotiate on their behalves.

Decisions reached by mediation are not legally binding.

Court proceedings

If the parents still fail to reach a decision, they can then apply for a Child Arrangement Order as a last resort to let the court make the final decision. It is important to note that the courts will not allow court proceedings to begin unless the parents have attempted mediation (except for in certain circumstances such as where there has been domestic abuse or it is an emergency situation where there is a risk of life or serious harm to the child).

This order will dictate the child’s living and contact arrangements with each parent. The court can also impose a Specific Issue Order to settle any disputes between the parents about important decisions regarding their child (e.g. which school the child should go to) or impose any necessary Prohibited Steps Orders to prevent a parent from carrying out certain actions without the permission of the other parent (e.g. moving country with the child).

When making the decision, the courts paramount concern is for the welfare of the child. Therefore, they will take into consideration the following:

  • child’s wishes and feelings
  • child’s physical, emotional and educational needs
  • effect any changes may have on the child
  • child’s age, gender, characteristics and background
  • any harm or possible risk of harm to the child
  • ability of parents to meet the child’s needs
  • orders the court has the power to make

If you would like advice regarding arrangements for children following separation, contact an expert in our Family Law team by calling 0191 281 6151 or email Emily Cannell, Associate Solicitor on ecannell@mincoffs.co.uk.

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