If you Have Children

The terms 'custody' and 'access' are no longer used officially or legally to describe which parent the child or children live with and how often the other parent sees them. The correct terms and concepts are explained in the next few paragraphs.

.: What is parental responsibility'?

Parental responsibility is the legal term used to describe all the rights and duties that parents have towards their children. For instance, it gives you the right to agree to medical treatment for your child, or to choose the school he or she goes to. When a child is born, the mother has parental responsibility. The father also does, but only if he is married to the mother at the time of the birth. However, later in the child's life,
the unmarried father of the child can get parental responsibility, either by:-

• Marrying the child's mother;
• Making a Parental Responsibility Agreement with the mother; or
• Getting a court order.

Both parents also get parental responsibility if they adopt a child. Also, any other 'suitable person' can get parental responsibility if the court decides so. You do not lose parental responsibility if you get divorced. You will carry on being your children's full legal parent, whether or not the children live with you.

.: How do we make arrangements for our children if we get divorced?

The court expects you and your husband or wife to be able to agree where the children will Live (residence) and how you will arrange to see them (contact). If you can do this between you, there is no need for a court order. You should continue to make major decisions about the children together, but you can each act on your own if you need to, for example, if you need to give consent to emergency medical
treatment.

.: What if we can't agree?

If you cannot decide which one of you the children should live with (residence), or how often they should see the non-resident parent (contact), then you may have to make an application to the court. Before you do this it is worth seeing whether you can use a mediation service to help you reach an agreement. If mediation isn't an option, either of you can make an application to the court for an order under
Section 8 of the Children Act 1989. You can do this whether or not you have already started divorce proceedings. You do not need a solicitor to act for you but it is probably a good idea to get some legal advice before you start. The Court Service produces two helpful leaflets about court proceedings and children:-

• 'Children and Divorce'; and
• 'Children and the Family Courts'.

The court will try to make sure that you and your husband or wife can come to an agreement. If you can't agree, the court will make an order. But the court will make an order only if it would be better for the child than not making one, and most cases involving children are usually settled by agreement at a reasonably early stage. This is generally better for everyone and it certainly saves a lot of legal costs.

.: What if there are specific issues that we can't agree on?

You can apply for a 'specific issue order' if you need the court to decide a single matter, such as where your child should go to school. Also, the court can make a 'prohibited steps order' to stop one parent doing something that the other parent disagrees with, such as changing the child's surname.