Parental Rights for Contact with Children after Divorce or Separation

06 January 2017

A question our Family Solicitors are often asked is, “Do I have the right to have contact with my children after I get divorced?”

It helps to understand what the term Contact means and how this is applied by Family Courts in England & Wales. In all cases the child’s welfare is paramount.

We no longer use the terms Contact Orders or Residence Orders in reference to whom a child is to live, spend time or otherwise have contact with. These are now referred to as a Child Arrangement Order that regulates the arrangements relating to contact with children after divorce or separation.

There are different ways in which contact with children may take place:

  • Direct visiting contact between the child and the person named in the Child Arrangement Order
  • Overnight staying contact
  • Supervised contact, and
  • Indirect contact through letters or cards and phone calls.

In rare circumstances, where the welfare interests of the child dictate, the Court can order that there is no contact.

Who Can Apply for a Child Arrangement Order?

All mothers have Parental Responsibility as do most fathers - if they are married to the child’s mother or are named on the child’s birth certificate. The main role for someone with Parental Responsibility is to provide a home for the child, and to protect and maintain them.

If you have Parental Responsibility for a child who does not live with you, you don’t necessarily have the right to have contact with them, but the other parent with care must still keep you informed about important matters that affect the child, including health, living arrangements, religion, education and welfare issues.

A child’s parents may have equal and joint Parental Responsibility but if it is agreed or ordered by the Family Court that a child is to spend time with both parents, it does not necessarily mean the right that the child’s time will be spent equally between their parents. The child may spend more time at the home of one parent than at the other; the Child Arrangement Order will set out in detail how the child’s time is to be divided.

A child’s parent can always apply for a Child Arrangement Order, as can a child’s step-parent if they have Parental Responsibility; other people may also apply if certain conditions are satisfied or they have permission to do so from the Family Court.

If it is not possible to reach an agreement about time with the children or where they should live, you can apply to the Court for a Court Order. Before you can do this you are now required to attend a meeting with a Mediator to see whether Mediation might be suitable, as the alternative to going to Court.

How Does the Court Decide?

The first concern of the Court is the child’s welfare. There are a number of factors to guide the Court in making a decision:

  • The wishes and feelings of the child concerned
  • The child’s physical, emotional and educational needs
  • The likely effect on the child if circumstances changed as a result of the Court’s decision
  • The child’s age, sex, background and any other relevant matters
  • Whether there is any risk of harm the child has suffered or may be at risk of suffering
  • The capability of the child’s parents in meeting the child’s needs.

The Court must also be satisfied that making a Court Order is better for the child than not making an Order at all. At the same time the focus is on upholding the child’s right to have contact with both parents.

At Co-op Legal Services our Family Solicitors offer initial legal advice about Children Law and Child Custody issues and can help you with a Child Arrangement Order. For more information see Child Arrangement Orders.

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