Shared Parenting – dispelling the myth

On behalf of Attwaters Jameson Hill posted in Uncategorised on Thursday, August 14th, 2014

What does “shared care” mean and how might it affect you if you are thinking of separating from your spouse or partner?

There has been a lot of media coverage about the government proposals for parents to “share care” of their children when they separate.  What does “shared care” mean and how might it affect you if you are thinking of separating from your spouse or partner?  Will you be legally obliged to make sure that the children spend 50% of their time with each parent?

The current legal position

There is a common misconception that the legal system favours the mother in proceedings regarding arrangements for children.  There is no such law which states that this is the case and the law is clear that the main concern of the court is the welfare of the child regardless of how that child has been parented prior to the separation.  That said, historically, mothers have been the primary carers of children with fathers being the bread winners.  This is not the case in all families but it is in the majority.  What this means is that when parents separate, it is usually the mother who becomes the primary carer of the child as this was their role prior to the separation. There is no law to prevent a father who has been the primary carer prior to the separation becoming the primary carer after separation.  Regardless of which parent is the primary carer, the court still has the child’s welfare as it’s main concern.

All married parents share equal legal rights in relation to their children.  Fathers named on their child’s birth certificate also share those rights with the mother.  Unmarried fathers not named on the child’s birth certificate or who have children born before the law changed in 2003 can acquire rights in various ways.  These rights are called Parental Responsibility.  Sharing parental responsibility means that major decisions about a child’s upbringing should be made jointly by that child’s parents.  Where the parents cannot agree on a particular issue then either of them can ask the court to make a decision for them.

Whilst there is no written law to say that it is in a child’s best interests to have a relationship with both parents, this is the approach which is adopted by legal professionals and the courts.  In the vast majority of cases this maxim holds true. However in a small number of cases, the courts and other professionals may not consider that it in the child’s best interests to have a relationship with one of his or her parents due to issues with violence, drug/alcohol addiction, sexual abuse, mental health problems etc – in these cases, contact can sometimes be harmful to a child.

The current law encourages all parents to try and reach an agreement between them about what the arrangements for their children should be when they separate. Some parents find this easier than others.  For parents who find this difficult there are various sources of help – family mediation services, parenting courses and good family law solicitors.  When using all of these services the emphasis is still very much on trying to reach a compromise.  If all attempts at reaching an agreement fail then it is open to parents to make an application to the court but this is always a last resort.  At the moment about 10% of couples have to resort to using the courts.  The court can make a residence order (stating which parent a child should live with) and/or a contact order (stating how often the child should see the other parent).  These orders can mean that parents adopt a sense of winning or losing which can mean that they lose focus on what might be best for the child.

The proposals

Some parents are not aware of the existence of Parental Responsibility or what it means for them personally when they separate from their partner.  The government has recommended that separating parents have access to an information hub to help them understand what their obligations and responsibilities are.  Parents would also have access to Separated Parenting Information Programmes and Mediation Assessment and Information meetings.  By providing parents with more information it is hoped that they will be given the tools they need in order to make their own arrangements.

It has been suggested that residence and contact orders should be replaced with a child arrangements order which changes the focus away from residence and contact and back onto what is best for the child.

There is no need to panic because the proposals are clear that no law should be introduced which gives a parent the right to have their child for 50% of the time so you will not be legally obliged to make sure that this happens.  What is suggested is that it the assumption that it is important for a child to have a meaningful relationship with both parents and to be protected from harm is written down in law.  In reality this is the basis on which the courts and lawyers approach cases now.

The main purposes of the proposed reforms is to educate parents how to parent their child more effectively after a separation and this can only be to the benefit of many families how find themselves in this position.  As every family is different, it is impossible for the law to adopt a “one size fits all” approach and sadly there will always be families who end up involved in a court battle.  All that the government, the courts and family lawyers can do is to continue to try and ensure that such cases are kept to an absolute minimum and that they are dealt with as efficiently as possible.

If you are in the process of separating, the best thing you can do is to try and put aside whatever issues you have with each other as adults and to look at things from your child’s point of view.  This is not always an easy thing to do but it can be a very useful way to take a step back and help you successfully parent your children together in the future.

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