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Custody and the division of assets is supposed to be for the benefit of the children, not whoever wins out between the separating partners. Unfortunately, because of this children are often used as a hammer to utilize the system. Whoever gets custody benefits from child support, may even end up keeping the house, and may feel they can brag about how the court has found them the better parent.
The court says no such thing, of course, and many judges have long complained that divorce doesn’t really belong in court. When couples don’t agree, it becomes a contested and invariably expensive contested divorce in which the judge has to rule on everything and for barristers to engage in what also invariably sounds like horse trading between themselves about assets and the available time of their clients.
“I should not have to be dealing with this,” a judge once complained. “All right, I’m looking here on my screen at a map of Gloucestershire. Where does the father work? And where does the mother live? Well, that’s enough. One week the mother, the next the father. And that’s an end to it.”
Who gets a voice here? Certainly not the child. The judge simply wants the thing done to move onto the next case, and no matter how impassioned the defense it becomes just a grandstanding nuisance. It’s up to the parents to deal with things before they have to end up investing huge amounts of time on minor questions.
In many ways, the laws are changing to force parents to deal with things before they go to court.
Why Don’t Children More Often Speak in Court?
Children are rarely called to give their voice in the court because it is generally accepted to be an ordeal even for the most capable child. Children under 16, if tested to be Gillick competent, if possessing ‘sufficient understanding and intelligence to enable him or her to understand fully what is proposed’ and having a different view of the situation from their guardian, may require a separate representation and someone to advocate directly on their behalf such as a good family solicitor.
Procedure allows children to be called to give evidence only when;
• They have factual matters relating to whether they or another child have suffered significant harm,
• To elicit their wishes and views for future care arrangements.
Care must be taken when allowing their guardian and solicitor to question older children in court, as in the case of Wolverhampton City Council v JA & ors  EWFC 62, in which Mr. Justice Keenan had to raise concerns concerns about the questioning of a 13-year-old child by her solicitor and guardian after making an allegation of sexual abuse, in a way that led to her evidence become inadmissible.
The Primary Care-giver and Physical Custody
UK laws makes the welfare of any children involved in the divorce the top priority, and as such the provision of a secure home and a reasonable continuity in their daily lives is a deciding factor for which parent becomes the primary care-giver. Divorcing partners often seek to be called the primary care-giver because it means they are most likely to retain the family home. But where do the children actually feel ‘most at home’?
“We have made bold reforms so that the welfare of children is at the heart of the family justice system, and there can be no doubt that parents play a very important role in every child’s life. Following break up of relationships we are encouraging all parents to focus on the needs of the child rather than what they want for themselves,” said Justice Minister Simon Hughes.
When the parents cannot come to a mutual agreement, the Court will have to make a decision with their behalf about where the child should spend their time and how frequently they may be with their ‘non-resident’ parent.
While there had long been an assumption that mothers played the predominant role in their children’s lives (and as such a child should not be separated from their mother), times and views on healthy psychological development have also evolved. The Court is aware of modern parenting roles and rather than make decisions based on assumptions instead pays attention to the individual needs of the child.
Fathers now have a more equal opportunity in Child Arrangement Orders; subject to the feelings of the children themselves, their day to day availability, whether one parent has historically undertaken for their daily care than the other, and if there have been historic incidents of violence or other problems that require the children to be protected.
Many judges are of mind that for their physical and psychological health a child should have one place to call home rather than bouncing back and forth. However, parents with visitation rights cannot be cut out of the decision-making process regarding any major issues involving the children.
Step-Parent and Grandparent’s Rights
It is possible for more than two people to have parental responsibilities for a child. In particular, more than ten percent of households with dependent children in the UK are step-families. Step-parents by definition must be married to one of the child’s biological parents, they cannot be step-parents simply by living together with their partner no matter how long.
Step-parents by marriage do not automatically gain parental responsibilities to the child by law. They do not have the authority to give consent for medical treatment or make decisions about their education, no matter if they develop a very close relationship or contribute greatly to their upbringing. Step-parents acquire parental responsibility via an agreement with those who have biological parental responsibility, by a court order, or by adoption.
In case the marriage ends and the step-parent is still greatly concerned for the welfare of the child, they do not have automatic right to see a child that is not biologically theirs. However, they may apply for a Child Arrangements Order, in which the court can specify where a child is to live and who they may spend time with. Child Maintenance Service can’t compel payment of child maintenance from a step-parent, but the court can order (or be requested) that a step-parent provide continuing financial support for the ‘child of the family’, i.e., one that was treated as if they were the child of both the biological parent and the married step-parent.
Under current UK law, grandparents do not have automatic rights to see their grandchildren after a divorce. The court does recognize that grandparents also have an important role in a child’s life, though at the moment they have to apply for a Court Order. It is rare for the court to refuse unless there is some evidence of abuse or violence.
It is recommended that grandparents present themselves as neutral to both parties in the divorce, rather than taking sides make it their own ‘grandparent time’ wherein the children find comfort and support away from the dispute. Grandparents have even been accused of harassment from simply sending birthday cards and gifts to their grandchildren simply because their parents had a hostile divorce that taints all family ties. There is a call for an amendment in the Children and Families Acts to support a child’s rights to have contact with their extended family as well.
Psychological vs Biological Parenthood
Parenting quality has a great influence on a child’s development and mental health. Can a nonbiological parent displace a biological parent? If there is evidence of abuse, of course, possibly. If not, what rights and responsibilities can non-biological parents claim when the married relationship has broken down? This has been discussed somewhat with step-parent rights, but there are other circumstances.
While nonbiological parenthood is often seen in case law from same-sex couples, they are legally registered as parents of the child if they are married before the clinical conception. If they are unmarried at the time they can only be recognized as a parent through adoption.
There was an amendment to the law introduced by the Children and Families Act 2014 in which a psychological parent could ask the court for Child Arrangements Order, for the child to either live with them or spend time with them. A ‘psychological parent’ is defined as
“(a) a person who is not the parent or guardian of the child concerned … a person with whom the child is to spend time or otherwise have contact, but …
(b)… not named in the order as a person with whom the child is to live.”
In essence, a parent who has no biological or legal relationship to the child with whom they are living with but have assumed a parental role fulfilling the child’s psychological needs for a parent as well as their physical needs.
Also, research has shown that parental orientation has little influence on the gender development of young children, but rather a child’s psychological health is far more influenced by the attentiveness of their parents.
Divorce can be a traumatic experience for all involved. When thinking of divorce, it may be important to first consider a child’s developmental level and how it will affect them. Infants require daily contact with their care-giver, are often very sensitive to their parent’s moods. Boys and girls react differently to a divorce, and depending on their age may experience enormous sadness or get angry when their own developing rigid moral rules are violated by their parents.
Older children are more aware of financial difficulties and airing it can intensify feelings of abandonment. Also, they are keenly aware that they are partly made of both parents, and disparaging the other party can batter their own self-esteem.
The law can only provide legal procedures for the financial and physical care of children’s well-being, ordering both parents to carry out their responsibilities – but their care for their own children’s psychological well-being completely is their own power. Parenting is a great duty and responsibility, don’t let just ‘winning’ over your divorced spouse overcome your love for your children.
Given a choice between winning and doing what’s best for your children, which one do you really value?
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