Child Custody Explained
What is 'custody'?
Custody is actually a concept that doesn't exist in English law anymore apart from on an international context - child abduction, for example. In a domestic sense, the Children Act of 1989, which came in 1991, fundamentally changed the concept of child custody. What we have now is the concept of parental responsibility, which is all of the rights and responsibilities that parents have for their children. Instead of child custody, we have 'residence', which is an order which states where a child should live, and 'contact' has replaced the old conditions of access.
What is 'residence'?
A residence order is an order that was introduced by the Children Act, which fundamentally changed the way that we deal with children in English law. A residence order is simply an order that says where a child should live, whether it be with one parent or another or, in fact, any other person. It's a bit different from the old concept of custody, which used to encompass also parental responsibilities. These days, you have a separate parental responsibility order. So the residence order is simply stating where a child lives.
What is 'parental responsibility'?
Parental responsibility is a concept that was introduced with the Children Act in 1999. It encompasses all the rights and responsibilities that parents have for their children. Parental responsibility is now separated from custody, which is a concept that we used to have under the old law. Custody used to encompass where a child lives, but also parental rights and responsibilities. We now have two separated orders: parental responsibility, which is the rights and responsibilities, and a residence order, which is a separate order that simply says where children should live. Not everyone has parental responsibility for children. Mothers always have parental responsibility and married fathers always have parental responsibility. Unmarried fathers, now, mostly have parental responsibility as long as they register the birth with the mother and are named on the birth certificate. That didn't used to be the case; it changed a couple of years ago. For those fathers who don't have parental responsibility, it can be acquired by order or by formal agreement that needs to be registered.
What is 'contact'?
Access or contact is simply, in terms of court order, the amount of time the child spends with the parent they don't live with. Access is the old term, contact is the new term and it simply denotes the amount of time that a child spends with the other parent. If you've got a child primarily living with one parent and the other wants to spend more or different time with that child, then they would apply for a contact order.
What is 'mediation'?
Mediation is a process by which an impartial third party will help a couple reach agreement concerning issues that affect them regarding separation and divorce. Mediation can deal with financial issues, it can deal with issues about their children, it can be the divorce proceedings themselves. The mediation process is what they call "legally privileged," which means that it can't be referred to in any subsequent court proceedings. Although, of course, the hope is that there aren't subsequent court proceedings; that the couple come out of mediation with an agreement that's going to hold water. They will need to take that agreement reached in mediation to their individual lawyers who will need to implement it. But mediation can be certainly a much more constructive and conciliatory way of reaching agreements on divorce, and certainly much, much better than going through a court process.
How do the courts decide who gets residence?
Whenever a court is dealing with an issue concerning a child, the child's welfare has to be the court's paramount consideration, and so that's at the forefront of the judges mind when considering residency. There is also a checklist that sets out other factors that a court should take into account when considering residency, and those are things like the child's wishes and feelings, the effect of any change in circumstances on the child and that sort of thing. So to a large extent it's very much a common sense approach to the issue of residency, it's where is the child going to live, who's going to be looking after the child, where is he/she going to be going to school, will that child be able to see their other relatives and friends and have the support. So it's very much a common sense approach to residency based on welfare.
What is a 'residence order'?
A residence order is simply an order that sets out where a child should live - usually with which parent a child should live. A residence order is simply that - nothing more. Under the old law, we used to have the concept of custody, which also encompassed what we'd now call parental responsibilities. They're now two separate concepts: parental responsibility, which denotes all the rights and responsibilities the parents have for their children, and residence, which is simply an order which says where they should live.
How do I challenge a residence order?
Once the court's made an order it can always be challenged by an appeal. What's important, if you're considering an appeal, is to get specialists, family or advice. It can be quite tricky - there are time limits, the procedure needs to be followed very carefully - and so if you possibly can do get some advice on how to do that. The appeal procedure varies depending on the court that you're appealing from. What an appeal isn't is a complete rehearing, apart from in some certain unusual circumstances, and so you need to think about seriously whether you're likely to succeed on an appeal. Usually an appeal will only succeed if the original judge was wrong in law, or the decision that he or she came to was so unusual or unbelievable, based on the facts that a reasonable judge wouldn't have been able to come to that decision. So most decisions are not that easy to appeal.
How has the law changed in England in recent years?
One of the most fundamental changes in the law was the introduction of the Children Act which came in 1991. That fundamentally changed all of the concepts that we have dealing with children. It brought in new concepts of parental responsibility, residence and contact. And that was the most fundamental change in recent years. The law also changes through case law. There is statute in case law. And there is no doubt that there's been a changing shift in recent years in how judges are dealing with particular cases. For example, we see more shared residence orders which are orders where parents are spending, not equal, but much more even amounts of time with their children. That's partly a consequence of how people live their lives these days. Women don't always stay at home and look after children. They're not necessarily the obvious parent to look after children on separation these days. We're also seeing different types of families: gay parents, particularly lesbian co-parents, are something that the courts see not infrequently these days. And where they used to say that a child shouldn't be brought up in that environment, that's not the case anymore. Certainly there are many lesbian co-parents who very happily parent their children, with the support of court orders if that's necessary. So it's those sorts of changes that we see simply through a shift in how society is.
What is 'shared residence'?
Shared residence is an order that states that a child live with two people. This may sound strange, but it's an order that separates the amount of time that a child lives with each of their parents. Shared residence is an order that's becoming increasingly common. When parents used to have disputes about their children on divorce, even after the Children Act came in, it was very rare indeed to have a shared residence order and they would only usually be made where there was a good degree of cooperation between the parents. That's no longer the case. The courts are recognising that giving a residence order to one person allows that person to feel that they're in a position of superiority over the other, and so what's increasingly happening is they're making the shared residence order, so that the stages of the parents is equal, even if the amount of time isn't precisely equal, because it can be quite unequal in certain circumstances. Shared residence is also an order that's used for different types of family relationships. There was a reported decision which actually went to the House of Lords last year, where the court very much approved of a shared residence order being made in favor of lesbian co-parents, so that they each had parental responsibility for the children.
What do I have to prepare for a residence case?
In preparing for a residence case you need to think about the welfare of the child because this is the court's paramount consideration in any custody cases. The court also has a list of factors that it needs to consider for a residence case and those are set out in The Children's Act. These include the wishes and feelings of the child, and the effect of any change in circumstances. To prepare for a residence case, look at those factors and think about where the child will live, how he or she will have contact with other brothers, sisters, friends, etc., how education will work, how childcare will work andhow financial support will work. For a residency case, these will need to be set out in a statement and explained to the court.
How do I find a good lawyer to represent me?
There are a number of options in finding a good lawyer. One of the very good ways to do that is to contact the family law group, Resolution. Resolution is a group of specialist family lawyers, all of whom adopt a constructed and conciliatory approach to family law, so you should know if you're contacting a Resolution member that your case is going to be dealt with sensitively. Otherwise, recommendation of a friend is a very good way of finding out. It's a very personal relationship that you can have with your lawyer in dealing with these very personal issues, and so knowing that it's someone you can get on with can be quite important. The other option may be law society specialist panels, and you can get that information, in terms of Resolution, from their web site which is www.resolution.org.uk and also from the law society web site.
How long can I expect a residence case to last for?
There's no set time for a residence case. The Children Act says that delay is prejudicial, and so the court will do what it can to bring these cases on as quickly as possible. Some of the difficulty that we have these days is simply that the courts are hugely overloaded and so getting a court listing can be quite difficult within a reasonable timeframe. The other problem is that if there is going to be a disputed residence case, the court will almost invariably ask for a report from the Children and Family Court Advisory and Support Service (CAFCASS). And they too are overstretched and overworked, and reports from them, depending on the area that you're in, can take quite significant amounts of time. And overall, from issuing your application to final hearing, you're probably looking at something like 4 to 6 months. If the case is more complicated, and involves psychiatric evidence or other types of evidence, or a number of witnesses, then it can be significantly longer.
How can I contest the outcome of a residence case?
You can contest the outcome of a residence case, or indeed any children application, by way of an appeal. Appeals can be quite tricky. There can be some strict time limits and the procedure can be quite, you need to follow it quite carefully, and so if you can, it's important to get some specialist family law advice and to do it quickly because there can be some quite strict time limits. And appeals don't necessarily follow. You can't have an appeal in every case, or certainly you are not going to be successful in every case. And because it is not a rehearing, it's a question of genuinely of finding that either the judge was wrong in law or that his or her decision was so out of the ordinary, so perverse that a reasonable judge wouldn't come to that conclusion based on the facts that he or she has decided, and so it can be quite difficult to appeal.
Can I resolve residence issues without going to court?
You can absolutely resolve residence issues without going to court. In fact, going to court has to be an absolute last resort in a child custody case. It's as good as it can be, but it's an adversarial process, and often people come out of court feeling that they've been badly done by whatever the result is. By going to court over residence, you are giving the decision about your children to someone else; there have to be better ways of dealing with residence issues, and indeed there are. There's mediation, which would involve speaking to an impartial third person who would try and help the couple come to an agreement about their children. There's also a new process called collaborative family law, which is also a much more constructive and helpful way of dealing with residence issues. With collaborative law, you have lawyers involved, but they sign up to an agreement with the clients to deal with child custody in a constructive way, and not to go into court. Thus, collaborative family law can be a better and cheaper way of dealing with residence issues than going through the court.
What is 'collaborative family law'?
Collaborative family law is a new process that's been operating in England now for about six years. It involves lawyers and clients signing up to an agreement together to deal with things constructively and in good faith. During the collaborative family law process, everything is done around the table, so rather than having letters going to and from solicitors' offices, lawyers and clients get together to deal with all aspects of the child custody case - and that includes the advice. Collaborative family law requires quite a difficult mind shift for the lawyers who are very much used to dealing with cases where we don't disclose everything and don't give advice openly. Experience has shown from the custody cases that have been dealt with through collaborativef family law is that it's a constructive process where people feel that they can carry out their divorce, their separation, their child custody disputes, in a dignified and respectful way.