In the second of our ‘What To Think About…’ series, our family law specialist, Jonathan Gilbert , advises you on what needs to be taken into consideration when drawing up what is commonly referred to as a custody agreement.
I’m going to start this guide by stating three things;
1) If you find yourself in a custody battle, you’ll hear the term ‘child arrangements order’ a lot – a child arrangements order sets out who a child should live with and who he or she should spend time with.
2) Your actions and the things you say about the other side can adversely affect the child or children. No matter how much you may dislike the other side, conduct yourself with class as you may negatively affect your relationship with the child or children as well as their relationship with the other parent or guardian. A bitter custody dispute benefits no one, least of all the child or children.
3) When deciding on the details of a child arrangements order, the judge is going to put the best interests of the child first at all times. When deciding on custody, no one is more important than the child or children.
When putting together a child arrangements order, or custody agreement, there are several options available. In this short guide, I will present these possibilities so that parents, anyone else who may have parental responsibility and other people, such as grandparents, who can also apply for an order, know what to expect from the process.
1. Legal Representation is Very Important
I would strongly advise anyone seeking to establish custody arrangements in respect of a child to consult with a solicitor before starting any legal proceedings. We can explain the full set of available options according to the particularities of the case, as well as the consequences they would have for both the parents or guardians and the children. This could prove extremely useful for the entire family because a solicitor could help the spouses make an informed decision quickly, thus preventing the need for costly and lengthy court proceedings.
2. The Main Types of Custody Agreement
A ‘child arrangements order’ will decide the following:
- where the child or children lives (Living arrangements)
- how much time the child or children spend time with each parent or guardian (Quality time)
- when and what other types of contact, such as phone calls, take place (Additional arrangements)
- Living Arrangements
- Quality Time
- Additional Arrangements
In the majority of circumstances, a judge will always try to create a child arrangements order where the child or children spend time living with both parents. In practice, although shared residence is becoming more frequent, you should know that often the child or children will live with one parent for more time than another in order to ensure a level of stability for the child. Therefore, the child will most likely live with one parent during the week to make sure they have an established routine during term-time and then will spend alternate weekends with each parent. More and more though, judges are now trying to ensure that both parents get time with their children during the week and at weekends in my experience.
As one parent will often spend less time than the other living with the child or children, a child arrangements order will usually also outline specific time the other parent receives with their child/children. For example, provisions will be put in place so that each parent is able to take their child or children on holiday during the summer holidays, and both parents are able to see their child over the Christmas and New Year period (or other periods of significance for families of other religions or national heritage.)
A judge may also include additional arrangements in a child arrangements order. These can include how often the parent and child have other forms of contact when they are not with each other.
Specific Issue and Prohibited Steps Orders
Furthermore, a Specific Issue Order may also be put in place by a judge. This deals with a specific question regarding how the child is brought up, such as which school they will attend and whether they will receive a religious education. In addition, a parent or guardian can also apply for a Prohibited Steps order in order to prevent the other parent or guardian from unilaterally making a decision about the child’s upbringing.
3. How To Reach A Custody Arrangement
The process leading to the establishment of a custody agreement mainly depends on the relationship between the parents. If they are able to reach a decision amicably, then it can remain informal. However, in most cases, parents cannot reach a mutually beneficial agreement and, as such, they opt for a more complex legal path towards determining custodial boundaries.
- Informal Custody ARRANGEMENTS
- Family Court
This is the simplest way to reach a custody agreement, as parents can negotiate on their own terms and find an arrangement that benefits them both, as well as the child. They may opt to involve a solicitor to make their decision official, or they may opt to avoid legal proceedings altogether. Note that this is a viable option only for parents who are able to trust one another fully.
In this case, the custodial negotiations between parents are supervised by a neutral third party. Each parent will have legal representation in the negotiation process, and when they find an arrangement that both sides agree with, both sides’ legal representatives will finalise the process and make it official.
It is a far more advantageous solution than Family Court mainly because the final decisions are made by the parents, rather than a judge. Moreover, it is a far less costly process than custody proceedings involving the court.
In situations where the parents are unable to reach an agreement during negotiations, the case is taken to Family Court. The final decision regarding the child’s legal and physical custody will be made by the judge, based on the cases presented by each party.
The court will rule on a child arrangements order that both parents will then have to respect to the letter. While this may be the only solution for parents who cannot reach a decision amicably, it should never be the first option for spouses who may stand a chance of being directly involved in the decision-making process regarding the child’s custody.
As you can see, the process of reaching a custody agreement can either be simple or extremely complex, depending on the relationship between the two parents. It is crucial that they seek legal support in this process because they must be aware of all the options available to them, as well as the long-term implications of each action they choose to take.
Ultimately, as I suggested at the start of this guide, parents really should put the child’s best interest ahead of their personal grievances with one another. Custody battles could prove to be emotionally traumatizing for kids. Therefore, if there is even a chance of reaching an agreement amicably, those with parental responsibility should always explore this option before taking the case to court.
If you ever need to draw up a custody agreement, please don't hesitate to contact us. Your first half-hour consultation is free and we'll do everything we can help you through what can be a difficult process.