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Family Law

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Children Issues

Many years ago the courts used to refer to arrangements for children as custody and access. It then moved on to residence and contact. Now, following a change in the law in April 2014, it is referred to as arrangements for a child under a Child Arrangements Order and is defined as where the child spends their time and how often they see each parent. So there is a move away from what was considered “possession” of a child by using the word custody and instead it is about reinforcing the message of equal parenting rights and the approach that the child has a right to have a relationship with both parents.

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What factors do courts take into account when making custody and visitation decisions?

If the court is asked to make a Child Arrangements Order, the paramount consideration for the court is the welfare of the child and what is in the child’s best interests. The factors the court takes into account when deciding what is in the child’ best interests is set out in law and is called the “welfare checklist”. This includes the wishes and feelings of the child, the child’s needs and capability of the parents.

Visitation (rights; restrictions)

This is how often the parent with whom the child does not live sees this child. This used to be called access or more recently contact. If the separated parents can agree the amount of time each parent sees the child then there is no need for the court to be involved. In fact the court will only make an order if it is necessary. If the parents cannot agree, the court can be asked to make a Child Arrangements Order and within this order.

Can you get custody order changed?

Sometimes, the child may decide they want to live with the other parent. If the child is older, their wishes and feelings maybe the deciding factor. However, if there are other siblings involved it may be more complicated. If the parent who the child lives with stops the other parents from seeing the child and there is no justifiable reason for, sometimes the court can say that the child should move to live with the other parent. However, this is quite unusual and all other options do need to be looked at first.

Child support (how it is calculated and how to enforce it)

Child maintenance, otherwise known as child support, is a payment made to the parent with main care (residence) of the child by the non-resident parent. It is paid for a child who falls into one of the following categories:

  • Under the age of 16
  • Under the age of 20 and in full time education (but not higher than A level or equivalent)
  • Under 20 and the parent with care receives child benefit

The first step is to try and agree the maintenance directly with the other parent. This is called a “family based agreement” and you do not have to involve the statutory child maintenance service. This type of agreement can simply remain between the parties and does not need to be registered anywhere. It can help to keep the relationship more amicable and allows for flexibility.

Sometimes it is not possible to reach an agreement and it may be necessary to approach the statutory agency responsible for dealing with child maintenance, called to Child Maintenance Service (CMS). Many people have heard of the Child Support Agency (CSA) but the CSA stopped taking on new cases on 25th November 2013.

The Child Maintenance Service can help collect child maintenance. The first step is to take a look at the Child Maintenance Options website where you can obtain some useful information. You will need to contact the Child Maintenance Options service first if you want ti use to CMS for child maintenance.

The CMS can then carry out an assessment and calculate the payments of child maintenance. There will be a small fee of £20.00 payable to the CMS for the calculation to be carried out. The child maintenance can then be paid directly from one parent to the other following the assessment – this is called Direct Pay arrangement. If the CMS have to use the Collection Service to enable the CMS to collect the child maintenance from the paying parent, fees are likely to apply which will affect not only the payer by making them pay additional fees on top of the child maintenance but also the receiving payment by deducting a % from the maintenance.

If there is non-payment of child maintenance then child support enforcement methods can be used such as making deductions directly from the paying parent’s wages

What if my ex doesn’t return my children?

If the child usually lives with you, then the other parent should return the child at the agreed time following the contact. If they do not, you should try to contact them to find out what the issues is. They may have a genuine reason. If not, you can contact the police to see if they can assist with the return. If there are no court orders in force and both parents have parental responsibility, the police may be reluctant to get involved and they may just do a safe and well check. You may then have to consider making an emergency application to court. If there is a risk of abduction of the child to a foreign country you must act immediately and inform the police.

Tips for parents engaged in difficult child custody battle. 

It is always better for the child if parents can agree. It is likely to avoid any feelings of hurt and resentment and can help the child feel more settled. However if this is not possible. Other avenues can be explored such as mediation or collaborative law.

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