FAQs on Child Law | Divorce, Finances, Family Law | McAlister Family Law


Child Law - FAQs

Upon divorce or separation, how do parties address arrangements for their children?

If you’re going through a divorce, it is important to arrange how much time you and your former spouse will have with your children. Child arrangements can be covered as part of a Child Arrangements Order, which specifies who the child will live and spend time with.

In most cases, parents manage to agree arrangements for their children after separation, and separated parents can have discussions between them about arrangements. It can also be helpful do this with the assistance of a mediator or through their solicitors, to try and avoid court proceedings.

The courts will not make any orders about child arrangements, in relation to who the children should live with, how often they should see the other parent, or specific issues, unless a parent makes an application to the court. If you are unable to agree arrangements for your children, one of you will be able to apply to the court, and the magistrates or district judge will then make an order regarding arrangements for your children. The court process is designed to try and encourage parents to come to an agreement, and at the first hearing, the court will explore ways in which disputes can addressed and settled. In most cases, the parties are required to explore mediation before making an application to the court, and show the court that they have been to see a mediator to try and narrow any issues and try to reach an agreement.

Who will our children live with upon divorce or separation?

If parents cannot agree between themselves who the child/ children should live with, or with the help mediation, then the court can make an order. If one party has to make an application to the court, the court will prioritise the welfare of the child and consider what is in the child’s best interests.If a child has been living with one parent for an extended period of time after separation, and there are no welfare issues, then it is likely that the court will make an order that the child should remain living with the parent they are currently with, as the court does not like to significantly change arrangements for a child, unless it is really necessary. This does not mean that the other parent will not see the child regularly, as detailed arrangements can be ordered by the court for weekly contact and also holidays and special occasions. However, you are unlikely to be made their main carer by the court if your ex has been the main carer since separation.

If we divorce or separate, will we have to go to court regarding the children?

Most separated parents do not have any court orders referring to who their children will live with and how arrangements will be managed for the other parent. The law now assumes that most parents will agree arrangements for their children without the assistance of the court, and therefore there is no need for a court order. It is also possible for parents to enter into a parenting plan, stating what arrangements are agreed, and a plan can assist both parties moving forward. If there are any difficulties regarding arrangements in the future, then the plan can be referred to and relied upon by the parties, and it can even be persuasive to a court if there are any proceedings in the future, provided that the plan is drafted and prepared property, with the parties receiving legal advice.


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