Richard Perrins - Partner, Coles Miller

Divorce And Children: Eight Myths About Custody Arrangements23rd Feb 2017

Around half all relationship breakdowns involve couples with children. They’re the ones hit hardest when their parents get divorced.Associate Solicitor Richard Perrins, head of the Family Department at Coles Miller, Broadstone

Separating parents always worry about the impact of divorce on their children. These fears can lead to common misconceptions about what the courts will decide.

1. The Mother Always Gets The Children

Often yes – but not always. The court will always base its decision on what’s best for the child. Their welfare is paramount.

These days the court approaches any case with a view to giving both parents as much access as possible.

And while younger children will usually live with their mother, this is less of an issue with the older ones.

Also, in some cases the mother may not be the most suitable parent – and the court may decide the children would be better off living with their father.

2. You Have To Go To Court

No, you don’t.

Few parents want to go to court. It’s expensive and time-consuming. For that reason the government would also rather more cases were settled out of court.

We agree. It’s better for all concerned if parents can agree children arrangements through mediation – instead of giving up control and handing the decision to a judge.

3. The Court Will Sort It Out

Not always. The courts are not obliged to do so. And they don’t have a magic wand.

After all the legal arguments, the judge may decline to make an order – in which case you’re back at square one (minus all the time and expense of going to court).

So before opting for court, first try to reach an agreement yourselves. You may end up having to do so anyway – whether you like it or not.

4. I’ll Get To See My Children Only Every Other Weekend

Talk to any divorced parent and they’ll often talk in terms of “it’s my/their weekend with the children.”

But the ‘every other weekend’ formula is not set in stone.

If you’d prefer something different then suggest it to your former partner and agree it between yourselves.

Compromise and flexibility are the way forward – especially when the arrangements involve holidays, Christmas, birthdays and other special occasions.

5. Paying More Maintenance Gives You Greater Rights

Sometimes we hear parents say: “I’m not paying maintenance if I’m not seeing my children.”

Their former partner has denied them access to their children. So they impose sanctions by cutting off the cash supply.

That’s a huge mistake.

Maintenance and access are two totally different matters. Your children still need to be fed and clothed regardless of whether or not you see them. That’s the reality in the eyes of the law.

So don’t resort to tit for tat tactics such as withholding maintenance. How do you think a court would view this?

Failure to pay maintenance won’t help your case if you do have to go to court to secure greater access to your children.

6. Every Child Case Involves CAFCASS Or Social Workers

The Children and Family Court Advisory and Support Service (CAFCASS) provides detailed reports to help the courts reach their decisions.

These cases include children arrangements, adoptions, social services, care and supervision.

But not every case has to involve CAFCASS.

7. Breaches Of Court Orders Are Rare

You can be fined or even imprisoned for breaching a court order. But that doesn’t stop people from doing so.

And these breaches happen more often than you might expect – another reason why going to court should always be a last resort.

What happens when a court order is breached? The case ends up back in court. More time, more expense for all concerned.

So it‘s much better to reach an agreement – then you won’t need a court order.

8. Someone Always Wins, Someone Always Loses

Not true. Divorce negotiations work best when you both try for the ‘win-win’.

And with children arrangements you’re aiming for a ‘win-win-win’: all three parties must be happy: you, your former partner and the children.

So don’t try to score points against your former partner. Sooner or later it will backfire and lead to hassle and expense for both of you.

By now you’ll have noticed two common themes emerging:

  • avoid bothering the courts (they’re far too busy)
  • agree things yourself instead.

All well and good if your former partner is reasonable – but what if they’re not? What if every conversation you have with them leads to a row?

Collaborative law can help in situations like this. Let the solicitors on both sides work together to reach an agreement that’s acceptable to both of you.

For more information, contact Associate Solicitor and Mediator Richard Perrins, Head of Coles Miller’s Family Law Department, 01202 355698.