Separating from a partner can be stressful at the best of times, but perhaps even more so when children are involved. Of course, you want what’s best for them. But, the system can be confusing and leave you with plenty of questions.
This guide to child arrangements aims to answer some of the most common questions we get here at Setfords to help put your mind at rest and show you that there is a positive way forward for you and your children.
Quick links
- What are child arrangements?
- Do I have to go to court for child custody (now known as child arrangements)?
- Is family mediation for child arrangements legally binding?
- Do courts favour mothers in custody battles (now known as child arrangements)?
- What is a parenting plan and what does a parenting plan cover?
- What is a Child Arrangements Order and what should be included?
- How can I get a Child Arrangements Order?
- How long does it take to get a Child Arrangements Order?
- Do I need to go to court to see my children?
- Do my children have a say in the child arrangements process?
- What is the most common child custody arrangement?
- Can a child refuse to see a parent?
- Should you force your child to see a parent?
- Can my ex leave my child with their new partner?
- Can my ex stop my child from meeting my new partner?
- Can my ex stop me from seeing my children?
- My ex isn’t sticking to the child arrangements, what can I do?
- Do I have to pay child maintenance?
- Can I move away with my children?
- Can I take my children on holiday?
What are child arrangements?
Child arrangements encompass everything that the parents agree upon during a divorce or separation relating to the children. For example, who looks after them and when to ensure that both parents can spend time with them. Having extended families on both sides (such as grandparents) spend time with the children is also usually considered.
Day to day arrangements should put the children’s best interests at heart. But, it’s also essential to consider any special occasions and holidays such as birthdays and Christmas. Agreeing to everything in advance minimises disagreements down the line and ensures that everyone- especially the children- has a schedule that works for them.
Do I have to go to court for child custody (now known as child arrangements)?
It is common for parents who are going through a separation or divorce to believe that they will have to go to court to sort out child arrangements. However, this is not always the case. There are several options you can consider before going to court, including the following:
What is Family Mediation?
This is a popular option for families struggling to sort out child arrangements that everyone agrees with. You will make all of the decisions, but a professional impartial family mediator will work with you to decide on a parenting plan.
If you wish to involve your children in this process, child-inclusive family mediation is a good option. Here your children will be encouraged to use their voices to speak up for their wants and needs to ensure that they are put first.
It is a common misconception that agreements reached at family mediation are legally binding. However, it is important to note that it is not, but there is confirmation of the parties’ intentions. Attending mediation is a prerequisite to issuing an application at court, unless your case is urgent, i.e. where a child is at risk. Therefore if you do happen to reach an agreement at mediation, it is beneficial to still approach solicitors to have the agreement formalised by way of a court order. This will ensure the agreement is endorsed by the court and is binding upon the parties.
Working with your solicitors
Here, your solicitor can negotiate with your ex’s solicitor on your behalf to come up with the best solution. Or, you can partake in what’s called ‘collaborative law’. This is when a four-way discussion occurs, with you, your ex, and your solicitors in the same room.
Arbitration
Another way of settling child arrangements matters outside of court, you can ask an arbitrator who is experienced in family law to come to a decision. This will be legally binding.
Court
For most families, going to court is the final stage if they cannot reach an agreement by other means. Here, a judge will make a decision on child arrangements for you.
Is family mediation for child arrangements legally binding?
No. It is a common misconception that any agreements reached at mediation are legally binding, but they are not. If you decide on your child arrangements through mediation, this will not automatically be a legally binding plan. If you wish for it to become legally binding, you can apply for a consent order through the court. Your solicitor will be able to assist you with this. However, please note that mediation is a prerequisite to issuing an application at court, unless the case is urgent (i.e. a child is at risk).
Do courts favour mothers in custody battles (now known as child arrangements)?
In short, no. This is a common misconception. The courts do not favour one parent over the other simply because they are the mother or father. The courts focus on what is best for the children and upholding the routine that they are used to as much as possible. The courts will consider both parents equally before making any decision.
What is a parenting plan and what does a parenting plan cover?
Parenting plans, otherwise known as parenting agreements, are written documents that outline the shared parental responsibility and how the child arrangements will be managed. Some specific arrangements that are often covered include:
- How and when parents are going to communicate
- Where the children will live, and with whom
- How any future disputes between the parents will be dealt with
- When and where the children will see extended family members and other parties, such as grandparents
- Anything else that the parents wish to include, such as religious or medical circumstances
Parenting plans are often drawn up as part of family mediation. However, bear in mind that they are not legally binding documents, although they may be used in court to show how child arrangements have previously been managed if needed.
These resources can be obtained on the CAFCASS website.
What is a Child Arrangements Order and what should be included?
If you do go to court to discuss child arrangements, it is likely that the judge will order a Child Arrangements Order. This legal order sets out where the child will live, with whom they will live, and when they will spend time with each parent. Parties are able to reach an agreement through the court process, but in cases where there is no agreement, the Judge will decide what the child arrangements should be.
Every order is unique and the specific contents will depend on the situation and what is deemed best for the child.
How can I get a Child Arrangements Order?
To receive a legally binding Child Arrangements Order, you and your ex-partner will need to attend court. However, before this happens, you will need to prove that you have tried other methods such as mediation but have been unable to reach an agreement.
If you cannot reach an amicable agreement through mediation or other avenues, you will need to fill out a C100 Child Arrangements Order Form and additional forms dependant on whether there are concerns such as domestic abuse, neglect, substance or alcohol misuse. Once the court has processed the forms, you will be assigned a date for a first hearing. During this hearing, the court will consider your dispute and decide on the appropriate next steps so that they can make a judgement.
How long does it take to get a Child Arrangements Order?
The time that it takes to get a Child Arrangements Order will vary depending on several factors. For example, how long the court takes to process the C100 Child Arrangements Order Form and other documents, and the number and nature of issues that need resolving for the Child Arrangements Order to be put into place.
Do I need to go to court to see my children?
Generally, no. If you can come to an amicable agreement with your ex-partner about child arrangements, there is usually no need for you to go to court to be able to see your children. However, if you cannot come to a dispute resolution outside of court, or run into other issues such as your partner being unreasonably unwilling to let you see your children, then going through the courts may be the best option.
If you are experiencing these issues, your solicitor will be able to advise you on the best course of action to take to get everything resolved. Please get in touch with us today to discuss how we can help you.
Do my children have a say in the child arrangements process?
This is very much dependant on the age of the children. Generally, children who are older can have a say in what they would like the child arrangements to be post-separation or divorce. The wishes and feelings of younger children are explored in an age-appropriate manner. If you are going through mediation, you can also use Child Inclusive Mediation to get them involved in an age-appropriate way.
If you are going through the court, they will likely appoint someone from the Children and Family Court Advisory and Support Service (CAFCASS). They will be a trained social worker, who may speak with your children about their views and wishes, and then advise the court about what is safe for the children and their best interests.
What is the most common child custody arrangement?
Every situation is different regarding child arrangements, and there is no one most common scenario. It’s important for children to spend time with each parent, as long as it is safe to do so. There are several ways in which to organise child arrangements. Some of the most popular include:
Sole residency
- The child or children lives with one parent; this is considered their home address.
- They will then have contact visits with the other parent, which may include overnight stays.
- The parents or the court may choose the frequency, time, and location of these visits.
- Some parents choose this option if one lives far away from the other, as it gives children a sense of security to stay in one home for the majority of the time.
Joint residency
- Here, the child or children splits their time between living with both parents.
- This can be a 50/50 time split, but it is not always.
- This arrangement means that the child can spend plenty of time with both parents.
Co-parenting
- This is a term that is becoming increasingly common. It usually refers to two separated people who are raising a child together, but it can also refer to two single people who decide to raise a child together even though they do not have a romantic relationship.
- The key is open communication that allows the child to benefit from spending quality time with each parent.
- However, the high level of communication that is needed between parents can have an emotional toll on those who are separated.
Flexible arrangements
- As the name suggests, this allows a greater level of flexibility in the child arrangements.
- Children may stay with each parent on a flexible, changing basis, depending on work schedules, extracurricular activities, and so on.
- The time that the child spends with each parent may vary between days and weeks.
- It allows everyone’s needs and commitments to be met without rigid arrangements.
Bird’s nest parenting
- This is perhaps the least common of the arrangements, though it is still used, particularly when younger children who may be more unsettled by separation are involved.
- The children stay in the family home, and the parents move in and out, with another home they use when they are not with the child.
- In theory, it allows the child to avoid feeling unsettled by having to move between houses.
Can a child refuse to see a parent?
If your child is reluctant to see you or their other parent, it can be incredibly distressing. It is a child’s right to see both parents, as long as it is safe for them. If there are no concerns for the child’s welfare and they are still not willing to have contact with a parent, there are a few routes you can take.
Firstly, try talking calmly with your ex-partner about the situation. Is there anything they can do to help the situation? This is not the time to point fingers or get angry. There may be an underlying issue that your ex-partner can help with.
Secondly, it may be the case that your child feels resentful about the situation and sees the parent they are refusing to contact as at fault. Here, it is a good idea to try and speak to them about their concerns and reassure them that the situation is for the best for everyone, even though it can be unsettling to start with.
It is very hard to force a child to do something that they do not want to do, even when it is emotionally distressing for you as a parent. Clear and open communication with your ex-partner and your child is key. This is an issue that child inclusive mediation may help you with if you have not been able to come to a resolution on your own.
Should you force your child to see a parent?
Similarly, communication is critical in this situation. And again, it is challenging to force a child to do anything they do not want to. If your child is refusing to visit their other parent following your separation or divorce, it is a good idea to try and find out the cause of the problem. Do they genuinely not want to see their other parent, or are they just feeling unsettled because of a new situation?
Of course, your child’s welfare and best interests should be everyone’s number one priority. Child inclusive mediation may help you to resolve the issues, but if there is a genuine concern for your child’s safety when it comes to visiting their other parent, there is legal action you can take to stop contact. Your solicitor will be able to advise you on what steps to take.
Can my ex leave my child with their new partner?
In most cases, nothing is stopping your ex-partner from leaving your children in the care of their new partner. If both parents have parental responsibility, they can exercise this responsibility in whatever way they deem appropriate. This includes dictating who they allow around their child, or to look after the child for them.
However, if you believe that your child may be unsafe spending time with your ex’s new partner, the courts may be able to put an order in place to stop it. But, the reasons for this would need to be valid and justified. This is a very rare situation, but if you believe you have a valid reason to stop your ex’s new partner from having contact with your child, your solicitor will be able to advise you on the best course of action.
Can my ex stop my child from meeting my new partner?
Similarly, the answer to this question is no in most cases. You have parental responsibility for your child, so you are free to state if and when your children can meet your new partner. As long as you have your child’s best interests at heart and your new partner does not present a safety concern for your children, there is likely no reason why a court would rule that your children cannot meet or spend time with your new partner at your ex’s wishes.
If your ex-partner is unhappy about your children meeting your new partner, open communication to try and resolve the issue is likely to be the best course of action. Family mediation may also be an option to ensure that everyone has an agreement that they are happy with. You should introduce your partner to your children once you have been in a stable and committed relationship with that person. One of the most common concerns raised in this regard is that too many partners have been introduced to a child quickly, and this can lead to a negative effect on a child about stable relationships.
Can my ex stop me from seeing my children?
In most cases, your ex-partner cannot stop you from having access to your children unless there are safeguarding concerns. Parents do have a right to see their children, and if you have Parental Responsibility then you do not need to ask the permission of the court before an application is made regarding child arrangements. If you do not have Parental Responsibility, then it does not mean that you do not have a right to access; you do, but it means that you have to apply for permission of the court before making an application if your matter goes down the court route.
Unless there is a genuine concern for a child’s welfare that may arise from spending time with a parent, the court can put an order in place so that both parents can legally have access to the child, if an agreement cannot be reached through mediation or other means.
My ex isn’t sticking to the child arrangements, what can I do?
If you have come to an agreement on child arrangements but your ex-partner is not adhering to them, it can be incredibly frustrating. The first step in this situation is to try to talk to them calmly. Why are the arrangements not working? Is there anything you can do to amend them to work better for everyone, keeping the child’s best interests at heart?
If you have come to your arrangements through a non-legally-binding method, such as mediation, you may want to consider revisiting it to come to a new agreement. However, if they still will not adhere to your arrangements, you can go to court to get a legally-binding Child Arrangements Order put in place.
If you have already gained a Child Arrangements Order through court, and your ex-partner is not upholding their responsibilities, there are a number of things you can do. Firstly, it’s important to be aware that the court is unlikely to put further measures in place unless there has been a significant or repetitive breach of the order, which you will need to prove.
However, they do have the power to enforce the order and give punishments to the parent who is not upholding it. These punishments can vary from unpaid work and financial compensation or fines to transferring the child’s residence to the cooperative parent and even prison time, although it is rare for a punishment to be this severe.
Bear in mind that this can work both ways. If one parent is refusing to let the other parent have contact with the child against the Child Arrangements Order, and there is no concern for the child’s safety, the parent who is being refused contact is within their rights to bring the matter to court.
Do I have to pay child maintenance?
If you have separated from your child’s other parent, and the child does not live with you, then in most cases you will have to pay child maintenance. This happens whether you have contact with your child or not, and does not automatically give you the right to see the child.
You can either arrange your payment with your child’s other parent and pay it directly to them. Or, you can go through the Child Maintenance Service (CMS). They will work out how much you need to pay, and you can then make the payments through them.
There are lots of factors that affect how much child maintenance you will need to pay. For more advice, visit the Citizen’ Advice website.
Can I move away with my children?
After a separation or divorce, you may want to move away from your current location, for example, to be closer to family members. But what happens when there are children involved?
Simply put, if you wish to move away with your children, you will need to get the permission of their other parent in order to do so. If you are struggling to come to an agreement with them, you may first want to try family mediation. However, if this does not work for you, you can apply to the court.
The court will consider all of the factors at hand, but especially what is in the child’s best interests, when deciding whether to grant relocation to one parent.
Any parent who does not consent to their partner’s relocation in the UK or their partner’s wish to live abroad with their child can apply for a Prohibited Steps Order to prevent their partner from moving until the court has had an opportunity to explore matters further.
Can I take my children on holiday?
If both parents share parental responsibility, you will need written permission from the other parent to take your children out of the country on holiday, and you will need to provide the other parent with all of the travel and accommodation details of where you will be staying. This is not necessary if you are holidaying in the UK however you should communicate with the other parent to put them on notice that you will be on holiday in the UK with the child. This is so that they are aware of where their child is and the details of your travel.
A person who has a Child Arrangements Order confirming that the child lives with them (previously known as a Residence Order) can take a child abroad for up to 4 weeks without the consent of the other parent. This is provided that there is nothing in the Order preventing foreign travel. It is advisable and respectful to allow plenty of time before your holiday to ensure that all arrangements are made in good time and that the proper steps are followed which would help minimise stress, disruption and delays.
If you are the only parent with parental responsibility, and there is no court-ordered Child Arrangements Order in place, you will also not require the other parent’s written consent.
If your ex-partner is unreasonably not allowing you to take your child on holiday, you may want to consider mediation to resolve your dispute. As a last resort, an application can be made to the court to have a Child Arrangements Order put in place that grants permission. If you do not wish for your child to be taken abroad on holiday and have concerns, then you are again able to apply for what is known as a Prohibited Steps Order to prevent the child’s removal from the country.
Conclusion
Coming to a decision about child arrangements following a divorce or separation can be a very stressful and emotionally draining time. However, with the right mediator or solicitor by your side, the process can be made far simpler.
If you’re in need of a family mediator or expert family law solicitor, Setfords is here to help you. Please get in touch with us on 0330 058 4012 or fill out the form below and one of our experts will be in touch.
Kiran Dhaliwal
Consultant Chartered Legal Executive
T: 0121 803 7779 or call 0330 058 4012
ext. 2782
E: kdhaliwal@setfords.co.uk