Many clients think that the family courts are unfair to fathers.
Often this because they feel that any shared parenting arrangement after divorce should be 50-50 and any slight deviation from this is a violation of their rights as parents.
The reality is that English law actually does not give parents any ‘rights’.
Old legal principles such as ‘custody’ were removed from the statutes years ago.
When a couple decides to separate, one of the most important decisions to make is how much time each parent spends with the children and it is always preferable to try and agree this without going to Court.
Now more flexible, shared parenting solutions are preferred.
Courts favour the mother
I frequently hear from clients that the law is “in favour of the mother”. This is simply not true.
There is absolutely no discrimination on the basis of gender by the Courts when determining whether a mother or father would be better suited to caring for the children, either during the school week or spending time with them at the weekend.
Your business ‘v’ your children
I have worked on a number of cases where the client thinks that being a business owner, so doing long working hours, will act to their detriment if they find themselves in Court.
It is that case that the law is tailored to ensure parents can effectively co-parent and share care of children no matter what business hours they work.
Working hours will dictate which times and days are best for any parent to have the children. It is the case of course that today, most employers will take childcare into account and will make arrangements for an employee work the hours to suit child care obligations.
In reality, owning your own business can increase your flexibility when deciding your working hours, which in turn means that you are far more able to share the care of the children
Shared parenting means that children have two homes where they can feel secure and continue to have a real family life with both parents.
As parents, you are in the best position to decide as to when your children spend time with both of you.
Hopefully, a shared parenting schedule can be agreed on by negotiations between your lawyers, but if that cannot be done the court will have to intervene.
The Court can grant a shared care order allowing children to live and spend time with both parents. But that does not mean the starting point is that the time spent with each parent will be equal. If the children are slightly older maybe 9 years + the court will want to know what the child thinks about spending more time with a parent who is seeking an order for more care, or 50-50 care.
In 2014 a presumption was introduced into law that in a child’s life the welfare of the child is presumed to be best served by the involvement of both parents.
That is on that basis that it would be safe to involve both parents and without specifying any strict division of time.
Some groups take the view that division of time should in fact be enshrined in law, that each parent should equally be entitled to shared care of a child and that if you wish to depart form that, you have to show very good reason why.
In English law a court will look at all the circumstances and determine what is in the best interest of the child. Custody was abolished in 1989 under the Children Act and now there is no such thing. What we have now is the Child Arrangements Order where the court specifies which parent a child should be with, to live with and spend time with if they cannot agree it themselves.
If you make a court application for 50-50 care, the judge or magistrate would look at what was best for the children .
This doesn’t necessarily accord with what either of the parents want. The court would look at both you as equals, and decide what to do about custody based on the evidence put before it.
What the Court will look for is whether you and your ex can get along for the benefit of your children, and, in terms of practicality, if you live close enough to one another and the distance to your child’s school.