When you marry and start a family with someone, you expect it to last forever, so it often catches couples off guard when their relationship comes to an end.
Navigating the legal side of child custody in the wake of a divorce can be incredibly messy. It can also turn a seemingly amicable divorce sour.
This is why it’s important for both parties to understand their role and their rights in the wake of a separation.
Obviously, this should not be used in place of personalised legal advice, but it can help you to understand where you stand and what steps you need to take to safeguard your custody rights following a breakdown of a relationship.
How are custody rights decided?
Your custody rights will be determined by your parental rights, also known as parental responsibility. There are some scenarios that will grant automatic rights.
The birth mother has automatic parental responsibility. Fathers only have parental responsibility if they are married to the mother or if they are listed on the birth certificate.
This is why it is important for unmarried partners to formalise their position by ensuring they are listed on the birth certificate.
Fathers can also gain parental responsibilities by marrying the mother, or by entering into a parental responsibility agreement. Fathers can also secure their rights even if the mother does not agree. This is achieved through a parental responsibility order.
Who has custody rights after separation?
Only those with parental responsibility will have custody rights following a separation.
Unmarried partners who have not applied for a parental responsibility order or entered into a parental responsibility agreement will not have the right to see the child.
It’s important to remember that one parent doesn’t have more rights than the other. It’s assumed that equal custody will be arranged, although this doesn’t always work out this way.
Separated couples may decide between them how to split custody, if they don’t want equal custody. If couples cannot decide, they can go through mediation or ask the courts to make a ruling for them.
Can one parent stop the other from seeing their child?
Unless there is a safeguarding issue that needs to be addressed, one parent cannot stop the other from seeing their child.
However, it’s down to the parents to decide not to withhold contact. It’s not uncommon for separating parents to “punish” each other by making it difficult to arrange contact. Some will withhold contact entirely.
If there isn’t a custody order already in place, the parent will have to petition the courts to arrange one.
If the other parent is claiming there are safeguarding issues, these will need to be investigated before the custody order can be arranged.
This process can take a long time, which makes it very distressing for the parent and the child.
What support is available?
The first step would be to try to decide on the custody arrangement between you. This is the preferred approach, as it means you will land on an amicable agreement.
If you are struggling to decide what is fair, you could work with a mediator to decide on the best custody agreement for your situation. If mediation fails, it will be left down to a judge to decide the custody order.
If circumstances change, it’s possible to change this order further down the road. For example, a father offered weekend visitation rights might pursue equal custody.
It’s a common myth that custody orders always favour the mother, as it will often allow for equal custody if both parents are willing and able to provide care.