Marriage Breakdown - Guardianship, custody, access & primary carer by Lynch Solicitors Ltd

WHAT IS GUARDIANSHIP?

Guardianship means parents' rights and duties in their children's upbringing. Guardianship rights entitle a parent to make important decisions about that child's upbringing, such as religion, education, medical treatment and general rearing.

The natural mother of a child is automatically a guardian of the child. A father who is married to his child's mother is also automatically a guardian. This applies even if the couple married after the birth of the child.

There is an automatic recognition of guardianship for unmarried fathers, provided they have cohabited with the child's mother for 12 months, including three months following the birth.

WHAT IS CUSTODY?

Custody means the right to physical care and control of a child's upbringing on a day-to-day basis.

Married parents residing together are the joint guardians and custodians of their children.

After separation, they continue to be joint guardians and custodians.

However, one parent may have care and control of the children for more time than the other and take the role of what is termed primary carer. This involves the child living with the primary carer and staying with the other parent less frequently.

The role of primary carer is often confused with custody which can lead to unnecessary disputes over custody.

HOW WILL THE COURT DECIDE?

The Court will deal with the issue of custody/access & primary carer on the facts. For example, the history of the party's involvement in the care of the children, the needs of the children and the resources of the parents to care for the children – but its primary concern is the child's welfare, and it will consider this under the headings of religious, intellectual and moral welfare.

ACCESS - IF MY SPOUSE HAS DAY-TO-DAY CUSTODY OF THE CHILDREN, CAN I STILL SEE THEM?

The parent who is not the primary carer and does not have the child's day-to-day care is entitled to access to their children.

Access is defined as the right of the parent, with whom the child does not live, to spend time with the child.

It can include the right to have the child stay overnight either occasionally, on alternate weekends or during school holidays and the right for parent and child to go on holidays together.

In many cases, custody, access and care arrangements for a child are agreed upon informally between parents.

Where agreement cannot be reached, either parent can apply to the Court to decide the terms and conditions governing the arrangement for the children.

DO THE COURTS OFTEN REFUSE ACCESS?

It is unusual for the Courts to refuse access to a parent and are very much in favour of granting access. The Courts think that it is essential that the child knows both parents and that the parent seeking access can be involved in their lives.

WHAT IF THE COURT MAKES AN ACCESS ORDER, AND MY SPOUSE WON'T STICK TO IT?

Once the Court makes an Access Order, then any failure or refusal by the custodial parent to comply with such an Order (i.e. allow access) is deemed to be in contempt of the Court.

This can result in a term of imprisonment and/or a financial penalty or be the basis for an application to vary the order and remove the parent as the primary carer.

WHAT TYPE OF ACCESS DOES THE COURT ORDER?

There is no magic formula; every situation and family is different.

The Court will take all the circumstances into account, such as the age of the child and the relationship that the child has with the parent seeking access.

If the parent seeking access does not have a relationship with the child, it is common to build the access gradually. This allows both the parent seeking access and the child to become accustomed to each other and gradually develop their relationship.

If, however, the parties were in a relationship or married and living together – the child would usually have a relationship with the parent seeking access, and there would be no need for them to build up the relationship. The Courts generally require that access be structured, i.e. certain days/weekends/evenings, rather than on an ad hoc basis.

The Court can also order supervised access if this is in the child's best interests.

WHAT FACTORS WILL THE COURT TAKE INTO ACCOUNT WHEN REACHING DECISIONS ABOUT THE CHILD?

The Best Interests of the Child are the key!

It has long been the case that the Courts take the best interests of the child into account when dealing with applications on issues that concern them.

Factors which are usually relevant in considering "best interests" can include:

• The benefit to the child of having a meaningful relationship with both parents.
• The views of the child depend on their age and maturity.
• The physical, psychological and emotional needs of the child.
• The history of the child's upbringing and care, including the nature of the relationship between the child and each of their parents.
• The child's religious, spiritual and cultural upbringing and needs.
• The child's social, intellectual and educational upbringing and needs.
• The child's age and any special characteristics.
• Any harm that the child suffered or is at risk of suffering.

CAN THE COURTS TAKE A CHILD'S VIEW INTO ACCOUNT?

Existing legislation, statutory instruments and case law allow for considering children's views. The child's views can be heard either directly or through a representative.

A Guardian ad Litem is usually appointed to this role in child care proceedings. The Guardian ad Litem provides children involved in family law proceedings with an independent voice in Court. A Guardian Ad Litem is an experienced and qualified person with expertise in working with children.

The Guardian ad Litem is appointed by the Court and advises on what is in the best interest of the child concerned. The Guardian makes the Judge aware of the child's wishes. They also consult with the child, the child's family, and other organisations that know the child and the family. These consultations are crucial to ensure that the child's best interests are presented independently to the Court.

In many cases, the child might be old enough that the Judge will decide to meet with the child for a discussion. This will happen in an informal setting, e.g. the Judge's private room, and with just the Judge and the child present.

AFTERTHOUGHTS

Get help to be in the right frame of mind to deal with the breakup. 

Deal with the children first and foremost and try to keep the family intact. 

Keep in mind that the other person may not be as far advanced in the process – so be patient. 

Be fully informed before you commit to any decision that has long-reaching effects. 

Plan how you are going to deal with the process.

Get to the end of the process as soon as possible without compromising your proper provision entitlements.

There is a significant benefit in reaching a conclusion – it enables you to move on and rebuild your life.