If you are facing a divorce or separation, one of the hardest aspects is likely to be helping your children adjust to the changes that are coming. The first step is to tell them that you and their other parent are separating.
We share some tips for dealing with this difficult situation and take a look at related issues such as parental responsibility and child contact.
Our experienced family law team can help you navigate the issues surrounding divorce and children, including negotiating on your behalf and ensuring that you have a child arrangements order in place that is in the best interests of your children and gives your family a level of certainty for the future.
What is Parental Responsibility?
Parental responsibility refers to the rights, responsibilities and obligations a parent has in respect of their child and their child’s property.
Someone with parental responsibility can make decisions for their child, such as where they will go to school and what medical treatment they will receive. They will need to make sure that the child is cared for and provide them with a home.
An individual with parental responsibility also has the right to be involved in certain decisions relating to the child, including:
- The child’s name, to include changing their name
- Where they will live
- Which school they will attend
- Planned medical treatment
- What religion, if any, the child will be brought up in
- Overseas holidays
Where parents cannot agree on these decisions, it will be necessary to take steps to find a solution. This could be by attending mediation, using another form of alternative dispute resolution, or by asking the court to make a ruling.
For more information, see our parental responsibility guide.
Do Both Parents Have Parental Responsibility?
Birth mothers automatically have parental responsibility. Fathers who were married to the birth mother at the time of the birth also have parental responsibility, as do unmarried fathers who are named on the birth certificate.
Other individuals may be able to apply for parental responsibility, such as unmarried fathers who are not named on the birth certificate, a same-sex parent or a step-parent.
Agreeing on Child Contact in Separation and Divorce
Child contact is now generally referred to as arrangements for children. The courts prefer that parents make arrangements between themselves for children following a separation.
You will need to make decisions about who your children will live with most of the time, where this will be and how frequently they will see their other parent. Other issues will also need to be decided upon including what will happen in school holidays, whether either parent can take the children overseas and where they will go to school.
Contact Arrangements
It can be helpful for families to have agreed contact arrangements approved by the court and sealed into a binding child arrangements order. This will ensure that everyone knows what is expected of them and give you and your children some certainty as to what your lives will look like going forward.
Family Mediation for Child Contact
If it is not possible to agree on arrangements with your child’s other parent, the courts will usually expect you to consider family mediation before making an application to the court for an order. A mediator will explain to you how mediation might be able to help you make a decision without the need for litigation.
Child Arrangements Orders
If you are able to reach an agreement over what you want to happen, your solicitor will put this into writing and the court can be asked to seal it so that it becomes a binding child arrangements order.
If you are unable to agree on issues and mediation is not successful, then the court can be asked to decide matters. The Children and Family Court Advisory and Support Service (Cafcass) will help the court by preparing reports on your family, ensuring that your child’s best interests are taken into account when making a decision.
How do Courts Decide on Child Contact?
In deciding what order to make with respect to child contact or child arrangements, the courts will look at what they believe to be right for the children involved.
In making the order, they will take into account the welfare checklist, as set out in the Children Act 1989 as follows:
The wishes and feelings of the child, taking into account their age and understanding of the situation
- The child’s physical, emotional and educational needs
- The likely effects on the child of any change in circumstances
- The child’s age, sex, background and any other relevant characteristics
- Any harm the child has suffered or is at risk of suffering
- The capability of the child’s parents to meet their needs
- The powers available to the court
Telling Your Children You’re Separating
There will come a point when you will need to tell your children that you are separating. Ideally, this needs to be done before they guess this if they are older children.
The best way to tell children about a separation is to do it together if possible. If you are able to tell them while you are all at home together and make sure that both of you are around afterwards, this may help them manage the initial shock.
Relationship support group, Relate, provide the following advice for telling children about separation:
- Don’t give them information that they don’t need to have, for example, about affairs
- Avoid speaking negatively about their other parent
- Explain it to them using language they will understand
- Let them know that it’s okay to be upset and comfort them verbally and with cuddles. Make sure you tell them that you both still love them and that it is not their fault
- Explain the changes that they will see, for example, that one parent will still be able to pick them up from school but won’t be there at bedtime
- Be honest if you don’t know the answer to something; just tell them that you will find out or let them know when you have the answer
- Make sure they know that they can talk to you again or ask questions when they need to
- If a parent will be leaving, let them know when, where they are going, when they will see the parent again and how they can contact them in the meantime
Telling Children of Different Ages About Divorce
If you have younger children, you will need to make sure that you communicate with them in a way that they understand.
Try to be at home, where they feel comfortable. You can talk to them while you do an activity with them, such as drawing or a puzzle, so that you can move the focus to this if you need to.
You may need to deal with the subject in stages, telling them a little about the changes at a time, as they may not be able to understand or process a large amount of information.
They may find it easier to communicate with you by comparing their feelings to something physical, such as pain, or by drawing or acting out what they are going through.
You can sum up what you think they are saying. This will show them that you are listening and make sure that you have understood them.
If you have teenagers, they may still find the situation difficult, particularly if they are going through other experiences that they find challenging.
Be patient and let them know that you are happy to talk to them whenever they want. Their reaction might not be what you are expecting, but let them say what they need to say. It can be helpful if you and their other parent have the same approach and the same message for them.
Check-in with them regularly afterwards to see how they are processing it. Conversations can be easier when something else is happening, such as walking somewhere together or on a car journey.
Asking what they think or what their opinion is about something may give them more opportunity to express themselves than asking yes or no questions.
Helping Your Children Through Divorce and Separation
Once you have had the initial conversations with your children, try to provide consistent care and as much stability as you can. For younger children, keeping to a familiar routine can be helpful.
Keep talking and try to make sure that your children don’t think it is their fault or that they can do something to get you and their other parent back together.
Be understanding when they have difficulties and try to talk openly about these. Even if they seemingly push you away, keep talking to them regularly and showing them that you care and that you are interested in their feelings.
Children do adjust to divorce over time. Ensuring they are exposed to minimal conflict can help with this.
Avoiding Conflict in Divorce When You Have Children
If you need to have difficult conversations with your child’s other parent, try to do it when your children are elsewhere. Make sure that you do not say negative things about the other parent to your child.
Having child arrangements in place early on can help everyone understand what will be happening and give children the security of knowing where they will be and who they will be with.
If you need help putting arrangements in place, a family law solicitor can assist, suggesting what to include in an agreement and negotiating this where necessary.
It is important to ensure that handovers go smoothly. If you have any issues to raise with the other parent, do this at another time. Moving between homes can be hard for children and ensuring that the changeover is as stress-free as possible is crucial.
What if My Child Does Not Want to Spend Time With Their Other Parent?
The courts prefer that children have meaningful relationships with both parents wherever possible. If your child does not want to see their other parent, try and establish the reason for this.
If the court has made a child arrangements order, then you will be in breach of this if you allow your child to stay with you when they should be with their other parent.
You need to encourage your child to spend time with their other parent and make sure that you keep to the agreed schedule unless you have concerns over your child’s wellbeing. If this is the case, you should speak to social services and your solicitor straight away.
For children over ten, it may be possible to take them to Child Inclusive Mediation so that they can discuss the situation with a neutral mediator.
If your child refuses point blank to spend time with their other parent and there is a child arrangements order in place requiring this, it is important to take legal advice. Breaching the terms of a child arrangements order is serious and can result in penalties.
It may be necessary to ask the court to vary the order. The court can look at the terms and make a decision, taking into account the child’s wishes and feelings.
Can My Child’s Other Parent Stop Me From Seeing Them If I Have a Child Arrangements Order?
Your child’s other parent cannot stop you from seeing them if you have a child arrangements order in place, giving you time with your child. If they attempt to do so, you should try and discuss the reason for this. If you are not able to resolve matters, you should speak to a family law solicitor who will be able to take steps to enforce the order.
Organisations That Can Help
- Children’s charity, the NSPCC
- Relationship support provider Relate
- Parenting and family support organisation Family Lives
- National Council for one parent families Gingerbread
Contact Our Family Law Solicitors
Our family law team has extensive experience in helping parents navigate separation and divorce. We always aim to resolve matters constructively and with a minimum of conflict.
We can help you put child arrangements in place and we will work tirelessly on your behalf to achieve the best possible outcome for you and your family. We will ensure that you have a binding child arrangements order in place that will give you and your children stability for the future.
If you would like to speak to one of our expert family lawyers, email us at info@witansolicitors.co.uk or fill in our contact form and we will talk through your situation with you and discuss how we can help.
