Your Children And Divorce
What is 'custody'?
Custody was a legal term that was used in the past to describe people's rights over children and rights to make decisions about them following a divorce. The term custody is now gone, and has been replaced by different terms. We now say, if a child is living with you, that you have "residence" of the child. If you want to visit the child, it's no longer called access, but rather "contact" to the child.
What is Residence and Contact?
Residence means when the child lives with you after a divorce. You can also have joint residence as well, where you have the child living with you part of the time and with your partner part of the time. Contact means the right to see the child following a divorce. Sometimes you can have defined contact which means that you can actually write down how often you see the child or it can be set down in stone by the court themselves.
What is 'Joint Residence'?
Joint residence is where the child lives with both parties for part of the time following a divorce. It's what you decide is joint. Some people have one week on, one week off, with the other party, or three days with one, four days with the other, or vice versa. Joint residence is when children spend half their time with each divorced party, and half the holidays as well.
Who decides how Joint Residence is split up?
Joint residence is decided between the parties, but if they can't agree then the court will actually make the decision on how to split joint residence for them, perhaps with the help of what they call CAFCAS officers, that is welfare officers, to help them to make that decision on how to split joint residency. The courts do not like to interfere in arrangements over the children. They like the parties to make the decisions about contact and residence themselves if possible.
Who gets custody of the kids?
There is no such entity as custody anymore in divorce cases that involve children. It is instead called residence or contact. In terms of who gets residence of the children these days, normally the mothers will get residence of the children after a divorce, except where there's an agreement for joint residence. Quite normally in cases, mum has residence, dad has contact to the children. The most usual contact is every weekend, or every other weekend, and some of the holidays.
My ex won't let me see the kids - what can I do?
If your ex-partner won't let you see the children after a divorce, you should first write a solicitor's letter. If this does not work you immediately apply to the divorce court for definite contact which means that the court will set down how often you see the children.
What is 'Defined Contact'?
Defined contact means that the court will set down how often you see your children and in what circumstances. So, for example, they will say every other week, and that you will collect them at a certain time and bring them back at a certain time, and they will say where you should collect them from and where you should take them back to. So it means they will define not only where and when, but the circumstances of it too.
What is 'Maintenance'?
Maintenance is the right to receive a monthly payment from your partner to deal with all your outgoings and expenses following a divorce.
Do I have to pay maintenance?
Whether you have to pay maintenance or you're entitled to receive it depends on how much you and your partner are earning. If you're both earning the same during divorce proceedings, you won't receive maintenance or be ordered to pay it. If there is a huge financial disparity - a huge difference in what you are earning - then you would have to pay your partner maintenance, or visa versa.
What if my partner refuses to pay maintenance?
If you are due maintenance and are entitled to it and your partner refuses to pay, than you would apply to court for what we call interim maintenance, pending the overall settlement. So there's two stages for maintenance. One is what happens before there's a final settlement, that's the interim position and you shouldn't leave it. You should go straight in for an order. If at the end of it, you are entitled to maintenance as part of the settlement, the court will decide how much you should get and how long that maintenance should go on for.
What is the 'CSA'?
The CSA is the Child Support Agency that deals with the collection and maintenance for children. The Child Support Agency (CSA) decide how much, for example, a husband or a mother should pay towards her children's maintenance. It's based on certain calculations. At the moment, the rule of thumb about calculations is, if you've got one child it's 15% of your partner's net income. For two children it's 20%, and for three children it's 25%, which must be divided between all of your children. Now, the Child Support Agency is in the process of being abolished. And the Government say they are going to set up a new body to do the same sort of thing but less complicated, but we're yet to see it set up.
What is a 'Statement of Arrangements'?
A Statement of Arrangements is a document that is filed with the divorce petitioner that sets out where the children live at the moment, where they go to school, what's going to happen to them in the future, where it's intended the children should live after the divorce and whether or not your partner is paying any maintenance to them. It gives the court a snapshot of what's happening with the children. When you're served with the divorce petition, you'll get a copy of a Statement of Arrangements regarding your children and you can say whether you agree or disagree with it.
What if I want to change the Statement of Arrangements?
If you are the divorce petitioner and you've put in a Statement of Arrangements regarding your children and you want to change it, you can do that at any time. If you've been served with one and you disagree with it, you can write to the divorce court and set out your own Statement of Arrangements, and set out the correct position about the children.
