For fathers who don’t live with their children, Christmas can be a challenging and isolating time. It’s essential to remember that, while not all families will be able to spend Christmas Day together, most fathers do have a right to spend time with their children over the festive period.
Fathers’ Rights after Divorce or Separation
It’s important to recognise a father’s rights after divorce with the same weighting as those of the mother. In a significant proportion of separation and divorce cases, the child (or children) will go to live with the mother. However, in these cases it’s just as important for a father to maintain contact with his children and to have an active involvement in their upbringing.
In England and Wales the law recognises that those who have Parental Responsibility over a child are responsible for ensuring that that the child has a home, is protected and is maintained. Parental Responsibility will usually apply to fathers who are named on the birth certificate or are married to the mother of the child at the time of the birth. Those with Parental Responsibility also have the responsibility to make decisions about their children’s upbringing and the right to be kept informed on their wellbeing and progress.
If a father has not automatically been granted Parental Responsibility he can make an application to the Court to be granted Parental Responsibility. There will need to be a valid connection to the child (i.e. as their father or step-father). If the father and the mother are in agreement then Parental Responsibility can be achieved by both people signing a Parental Responsibility Agreement. If they cannot agree, then the father has a right to apply to the Court for a Court Order. Unmarried fathers’ rights are the same as those of married fathers in these circumstances.
A Father’s Rights to See His Children
If a father has Parental Responsibility for a child that he does not live with, he will not automatically also be entitled to have contact with that child. As a father, it’s therefore important to establish early on how much contact you will have with your child and when this will take place. This can be set out in a Child Arrangement Order.
As long as the father has Parental Responsibility then he is entitled to apply for a Child Arrangement Order. The terms of this Order will set out how the child’s time will be divided between the two parents.
For a Child Arrangement Order to be drawn up, both parents will need to come to an agreement on how the child’s time will be divided between them. If an agreement cannot be reached, then it is possible to apply to the Court for a Court Order. However, before an application can be lodged for this both parents would need to attend a meeting with a mediator to see if the matter can be resolved without the need to go to Court.
If an agreement cannot be reached and the matter is taken to Court, the primary concern of the Court would be the child’s welfare. They would take several factors into consideration, including:
- What the child wanted (if they are old enough to make a decision)
- The child’s background as well as details such as their age and gender
- The physical, emotional and educational needs of the child
- The potential impact on the child of a change in circumstances or living arrangement
- Whether the child is at any risk of harm
- Each parent’s capability of meeting the needs of the child.
The Court will determine whether making a Court Order would be in the best interests of the child, while recognising the child’s right to have contact with both of their parents.
A Father’s Rights to See His Children at Christmas
Christmas is a magical time for young children and it’s likely that both parents will feel strongly about being able to spend time with the kids at Christmas. Some separated parents may find that they can spend time together with their child on Christmas day, but for many this will not be a realistic option, so arrangements will need to be made for each parent to see their child separately.
Child custody battles and arguments in the run up to Christmas can be harrowing for parents and a cause of stress and anxiety for children, so it’s important to work towards an amicable agreement.
Often arrangements for Christmas, birthdays and other occasions will be defined in the Child Arrangement Order. If there is a Court Order or Child Arrangement Order in place which sets out who the child should spend Christmas with, then this should be honoured.
If one parent breaches the Child Arrangement Order, then the other parent should keep a record of this breach (even if it’s minor). Repeated breaches could result in the offending parent being reprimanded by the Court or changes being made to the Child Arrangement Order.
If a father who does not live with their child is seeking contact with their child at Christmas outside of the Child Arrangement Order or Court Order, the first step would be to discuss this with the resident parent (the parent who the child lives with). The child is entitled to have contact with both of their parents, and this extends throughout the festive period.
Hopefully an amicable agreement can be reached between the parents whereby they can both spend quality time with the child to celebrate Christmas. It may be that the child spends the morning with one parent and the afternoon with the other, or if this is impractical then it might be decided that the child will spend alternate Christmas Days with one parent and spend Boxing Day with the other.
Whatever the outcome, it’s a good idea to start this conversation as early as possible so that arrangements can be made that suit everyone. This will minimise upset and enable other plans to be made which keep each parent busy while their child is spending time with the other.
For free initial legal advice call our Family Law Solicitors on 03306069626 or contact us online and we will call you.