Although it is almost 40 years old, the movie Kramer vs Kramer can still evoke strong emotions. I recently watched it again realised that, despite great changes in the law over the past four decades, the raw sentiments sometimes exposed when couples are sorting out arrangements for children, remain unchanged. Kramer v Kramer was released at the time of a great cultural shift in Western society. The second wave of feminism saw women entering the workforce in huge numbers, divorce became socially acceptable, and men became far more involved with raising their children.
In 2017, we benefit from the privileges fought for by previous generations. We no longer talk about ‘custody and access’. There is no presumption that a mother is the better parent simply based on her sex, fathers are granted paternity leave, and most importantly, family law is designed to help couples work out arrangements for their children following separation between themselves. In most cases, the character assassination employed by husbands and wives in court, a factor which made Kramer vs Kramer so painful to watch, is thankfully consigned to the legal history books.
Going to court is a last resort
Everything about the family court system is geared towards supporting couples make their own arrangements when it comes to who the children of the relationship will predominantly live with, and the amount and type of contact the other parent will have. Organisations such as Resolution and Collaborative Law, both of which our family solicitors belong to, are focused on helping couples resolve disputes in a non-confrontational manner. Methods used to assist parents resolve their disputes around arrangements for their children include roundtable negotiations and mediation. If you and your spouse/partner can reach an agreement together, either by yourselves or with a little help from the above methods, you can ask your solicitor to draw up a consent order which consolidates what you have agreed. Your family lawyer will get you both to sign the consent order, then present it to the court for approval. If approved, the order will become legally binding.
Child Arrangement Orders
If you and your partner/spouse cannot agree on arrangements for your children or the nature of your relationship means negotiation and mediation are not suitable or safe options, you can ask the court to decide on who the children will live with and contact provisions. This is done through a Child Arrangement Order. A Child Arrangement Order is also used in situations outside of a separation or divorce, e.g. grandparents may apply for a Child Arrangement Order to be granted to them if both parents of a child have suddenly died or the parents are deemed unfit.
There are four main types of types of Child Arrangement Order:
- Residence orders, which state where the child will live
- Contact orders, which outline the amount and type of contact the non-custodial parent will have
- Specific issue order, which may state where the child will go to school etc.
- Prohibited steps order, which states that a parent cannot do something (for example, take the child out of the country)
The process for obtaining a Child Arrangement Order
In most cases, before you can proceed with making an application to the court, you and your partner/spouse must attend a Mediation Information and Assessment Meeting (MIAM). Here, a trained mediator will talk with you and assess whether your childcare dispute can be resolved through mediation rather than formal court proceedings. If the parties and the mediator agree to mediation, a further session will be arranged. Mediation is a voluntary process, and you cannot be forced to partake. If mediation is not an option, or the method has proved unsuccessful, you may then apply to the court for a Child Arrangement Order. A hearing date will be duly granted. At the initial hearing (called a ‘directions’ hearing), a judge or magistrate will encourage the parties to come to an agreement between themselves about childcare arrangements, taking into consideration the best interests of the child. A person from Children and Family Court Advisory and Support Service (CAFCASS) will also be present. If an agreement cannot be reached, the judge or magistrate will order more hearings. Evidence from witnesses and the CAFCASS officer may be submitted during these subsequent hearings. The CAFCASS officer is there to represent the views and interests of the child, and as well as giving evidence, he or she can make recommendations to the court.
The judge will consider all the evidence from the party’s solicitors and the CAFCASS officer, and then make a Child Arrangement Order, based on:
- the best interests and views of the child
- the emotional, physical, and educational needs of the child
- which parent can best meet the child’s needs
- whether abuse or neglect has played a part in the child’s life
Having to attend court can be stressful for all family members. It also dramatically increases the cost of separation or divorce. The best way to avoid this is to work with a member of Resolution or a Collaborative lawyer, who will assist you to work out childcare arrangements in a non-confrontational matter wherever possible.
Nalders Solicitors has a dedicated family law team who can provide legal advice and representation in divorce matters. To speak to us, please phone 01872 241414 to be directed to your closest office.