News sources this week are reporting that Angelina Jolie is ‘dangerously close to losing primary custody of her and Brad Pitt’s six children’ if she does not facilitate greater contact between Brad Pitt and their children while she films Maleficent 2 in the UK this summer. According to the Daily Mail, the Superior Court of Los Angeles County determined that ‘not having a relationship with their father’ would be ‘harmful’ to the family’s children.
Whilst one would expect there to be a degree of exaggeration in the tabloid reporting of this story, it does highlight the importance the Court places on children having positive relationships with both parents, and this is something which rings true for separating families both across the pond and in England and Wales.
So how much time should your child be spending with each parent on divorce and who gets ‘custody’?
The starting point is to note that there is no hard and fast rule which sets out with whom the child should live and when they should spend time with the other parent.
Since 2014 and the introduction of Child Arrangements Orders, there is now a presumption of shared care. However, this does not necessarily mean equal time with the child – it just means that the child has a right to live with or spend time with you both. The word ‘custody’ is not a term used in England & Wales.
It is important that any routine is practically based and ensures that the child enjoys good quality time with each parent. It is also important that the routine offers stability and continuity, so the child has a good understanding of its operation and it can be regular. This is particularly relevant as the child gets older, to ensure they are well organised for school and all their extra-curricular activities.
When considering a parenting time routine, you should also consider the practical abilities of each parent to maintain a routine. Whilst the idea of the child living with both parents for an equal amount of time seems straightforward on paper, this may not be an appropriate solution in all circumstances. For example, where one party is out of the house for long hours due to work commitments, it may be difficult for that parent to facilitate the child’s day-to-day routine, even with the support of childcare. This is of course dependent on the age and independence of the child.
For an equal time shared care arrangement to work, it has to be practical for the child to move regularly between homes without it becoming distressing and disruptive for the child.
Despite the shift in the Court’s approach towards shared care arrangements, there is also nothing wrong with more traditional routines, such as a child spending alternate weekends with the other parent, if that is the most practical routine for your family and in the best interests of your child.
What if you have concerns about your child spending time with the other parent?
As a general rule, the Court’s approach is that parent with whom the child lives should encourage the child to spend time with the other parent, unless it presents a risk to the wellbeing of the child. This is of course a broad definition, and what one parent considers a risk another may not. We would therefore urge you to take specialist legal advice on this at the earliest opportunity.
It is however clear that hostility between the parents should not prevent a child from enjoying a positive relationship with both parents.
My child does not enjoy spending time with the other parent, in fact, they would rather not go. Can I refuse to agree to contact?
Where a Child Arrangements Order is in place, refusing to facilitate contact at the specified time would be considered a breach of the Order. This could result in enforcement action being taken by the other parent. If a child is adamant that they won’t go to contact and there is an order in place, take legal advice on your position and the options available to you, which may include applying to vary the order. Generally, however, the Court will expect you to strongly encourage a child to attend contact and if necessary enforce this with a younger child in the way you would them going to school, unless there is a very good reason not to do so.
If there is no Order in place, there is no legal obligation on you to facilitate contact. However, refusing to facilitate contact with the other parent may result in them making an application to Court in respect of the child. This can result in lengthy (and potentially costly) Court proceedings which we would urge parents to avoid.
Rather than refusing to facilitate contact, you may find it more productive to speak to the child about why they are feeling the way that they are. For example, is there something about the other parent’s house they do not like? Are they scared of a pet? Does the other parent take a much stricter approach? Once you have understood the underlying issue, you can work towards reaching a compromise and contact can be built up gradually. Depending on the age of the child, mediation including them could also be a potential way forward.
What happens if we cannot agree how much time the child should spend with each parent?
There are a number of process options available to help you reach an agreement with the child’s other parent, or failing that, for a decision to be imposed on you both.
Many families find mediation a particularly effective tool to assist them in reaching an agreement. However, if this does not prove successful, it is open to either parent to make an application to Court for the Court to determine the arrangements, or you could agree that your problem should be decided by an arbitrator as an alternative to Court.
We agree the arrangements, do we need a Child Arrangements Order?
No. If you are able to agree the arrangements between yourselves, there is no need for the arrangement to be embodied in a Child Arrangements Order. However, it is often helpful to set out the arrangements in writing (e.g. by email) so there is no confusion going forwards. You can download a parenting plan from the CAFCASS website to complete together here.
I have been told I am alienating my child’s other parent. What does that mean?
The Families Need Fathers website (www.fnf.org.uk) defines Parental Alienation (PA) as follows:
“A situation in which a resident parent (usually but not exclusively) turns their child against the non-resident parent, intentionally or unintentionally, resulting in the child’s supposed desire to reject all contact with that parent.”
Situations of Parental Alienation are relatively rare, but they can have long-lasting, potentially irreversible, impact on the child and targeted parent. For that reason, the Court can sometimes move the care of the child away from the alienating parent to the other parent in these cases, as the Judge appears to have threatened to do with Angelina and Brad. For further information on Parental Alienation, see this blog.
If you would like to speak to one of our family law specialists about child arrangements or other family matters please contact us.