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A divorce or separation, no matter how amicable, may give rise to a number of difficult questions for you and your former partner, including what arrangements you are going to make for your children.
You will need to decide on where your children are going to live and how much time they are going to spend with each parent once you are living apart. It is usually sensible to try to agree what the arrangements for the children will be before you start living apart so that the arrangements can be resolved in advance and communicated to the children with a view to minimising the emotional impact of these major changes on their day to day lives.
Sometimes this can prove to be a contentious matter, which means it is important to be aware of your rights and the various options that may be appropriate depending on your circumstances.
Your legal right to spend time with your children following separation
The default legal position following a separation or divorce is that both parents who have parental responsibility will have the right to be involved in important decisions about their child’s upbringing, such as where they will live, and where they will go to school.
Both parents will have equal rights when it comes to deciding who the children will live with following divorce or separation and both parents will also have the same legal rights when it comes spending time with the children. However, there is no guidance or set pattern as to exactly how much time children should spend with each parent.
In the majority of instances, there will be an opportunity for separating parents to make these decisions between themselves on a voluntary basis. This will involve considering jointly how any arrangements may work best for their children given, for example, existing commitments, the proximity of their home to the children’s school, existing childcare and work arrangements.
Making the right decision for your children
In every instance, the children’s wellbeing should be both parents’ primary concern. When making a decision over how much time the children should spend with each parent the potential impact on the children of any arrangement needs to be given careful consideration. This is true even if it means that one parent has less time with their children than they would ideally prefer.
The focus should be less on dividing time equally or how much time each parent “gets” and rather on what balance will work best for the children. The goal should be maintaining stability for children, encouraging them to have a relationship with both of their parents and supporting their specific needs whether these be educational, or in relation to extra-curricular hobbies and interests or seeing extended family.
It’s also important to consider the age of the children. For example, younger children may prefer to see their parents more frequently through short visits, whereas older children might want to spend more quality time with a parent for longer period of time, over a long weekend and on a less frequent basis.
How to decide who your children should spend time with following separation or divorce
There are two ways you can decide on who your children will spend time with following a separation or divorce: a voluntary agreement or a Child Arrangements Order.
Voluntary agreements
It may be the case that you and your former partner, either directly between each other or with the assistance of your respective solicitors, are able to immediately agree on arrangements for your children from the outset.
Agreeing a voluntary arrangement will usually be the best option as this is likely to involve less acrimony for all parties and be supportive of a continued co-parenting arrangement between separated parents.
A voluntary agreement on child arrangements can reinforce the message to the children that, despite their parents’ separation, they are still a team that is able to provide structure and security for their children. An agreement that has been reached by the children’s parents who ultimately know their children best is likely to be an arrangement that is sustainable and flexible.
If you and your former partner both believe that making a voluntary agreement is the right approach for your family, but you are not able to agree on the exact details of your contact arrangements, there are a number of options you can explore which could avoid the need to go to court.
Constructive Negotiation, Family Mediation and Collaborative Law are all geared towards opening an effective dialogue between you and your partner so you can both get a better understanding of what you want following your separation. This can make it much easier to achieve and agree an effective parenting agreement.
Child Arrangements Orders
If you and your former partner are unable to come to a voluntary agreement on the contact arrangements for your children, it might be necessary to apply for a Child Arrangements Order through the court.
A Child Arrangements Order allows the court to make a decision regarding who your children should live with and how much time your children should spend with each parent, as well as any other matters of contention (such as where they will go to school).
Either parent is able to apply for a Child Arrangements Order, but there must be evidence that a Meditation Information and Assessment Meeting (MIAM), or a valid alternative, has already been attended, to confirm that the matter cannot be resolved amicably.
Dealing with holidays, birthdays, Christmas and other special occasions
Holidays and special occasions, such as Christmas and birthdays, can be very touchy subjects for separated parents. It may be the case that the standard arrangements which apply during term time or for the rest of the year, do not work – for example if one parent sees their children on a Tuesday, but Christmas falls on the same day.
So, to avoid any potential disputes, these annual events should be accounted for when contact arrangements are made. A simple solution that many separated parents opt for is to agree that the arrangements will change during school holidays allowing the children to spend longer periods of time with either parent and to consider alternating any special dates like birthdays or Christmas Day
Spending time with your children as a non-resident parent
Spending the right amount of time with your children as the non-resident parent can occasionally prove to be difficult, particularly if your former partner is seeking to restrict or interfere with the contact you have.
If you are being denied access to your children, then it is worth seeking to understand why restrictions or blocks are being imposed by one parent. In some cases, you may discover that these reasons are justified and can be resolved through further discussion, negotiation or sensible compromise.
There are a wealth of resources and options available to parents to assist with resolving disputes such as family therapy, mediation, negotiation through solicitors and, as a last resort, it may be necessary to consider making an application for the matter to be determined by the court.
If you do decide to rely on court proceedings, a judge will review your case and decide whether you are being unfairly denied access, taking into account the welfare of your children as a priority. From here, a Child Arrangements Order can be made by the court dictating how and when the children are to spend time with each of you.
On the other side of the coin, you may be a parent with serious concerns about your children’s welfare and want to ensure that there are adequate measures in place to protect the children. You could consider the steps highlighted above or make an application to the court for a Child Arrangements Order, which can be expedited on an emergency basis if necessary.
What to do if your child doesn’t want to spend time with you
If you learn that your child doesn’t want to spend time with you, your first port of call should be to try to understand why they might be saying this. It would be sensible to take some time to speak to them one on one so you can better appreciate how they feel about the current arrangements and if there is anything you can do to alleviate their concerns or anxieties about the time that they are spending with you.
It is also important to understand and spot the potential signs of parental alienation. This is the process of one parent turning the child against the other parent, often through phycological manipulation.
Parental alienation may be ongoing if your children suddenly, and without warning, are hesitant to speak to you, are distant when they are with you or your spouse speaks badly about you in front of your children.
To learn more about parental alienation, read our blog post: My Children Don’t Want to Spend Time with Me – Is this Parental Alienation?
Need help deciding who your children will spend time with following divorce?
At Sharp Family Law, we have a dedicated team of family law experts, who have a wide range of expertise with regards to child and parenting law.
Our team can help you to make a voluntary agreement regarding contact with your children, as well as supporting you with Child Arrangements Orders.
For pragmatic, constructive and sensible advice on any aspect of child and parenting law, please contact your local team in Bath or Bristol.
Bath 01225 448955 Bristol 0117 9055 055