At CFLP, one of the questions we’re asked most frequently by people in the throes of separation or divorce is what level of contact a parent should have with his or her children when no longer living with them full-time. We are asked this question both by the parents who are moving out and the parents who are still living with the children, many of whom are also keen to ensure that the children retain a close relationship with the other parent, but feel they need some guidance as to the way other people manage similar situations. This is entirely normal: most people have never separated from their spouse or partner before, and it can be reassuring to find out what is considered to be “the done thing” in such circumstances. However it’s important to recognise that, as every family is unique, any notion of what is “normal” can leave people wandering down the wrong path for their own family.
When parents are sorting out patterns of time to be spent by the children with each parent, there are always significant emotional issues at play. For most parents, the children are the most important factor in divorce or separation. If one parent has made the choice to leave the family home, the guilt and sense of having abandoned the children can be overwhelming. This can sometimes lead that parent to propose that care of the children be split equally, even if a realistic appraisal of the parent’s own work circumstances would indicate that this might not be feasible. In these circumstances, the parent who remains in the family home with the children can feel that not only is their personal and financial integrity threatened by the breakdown of the marriage, but also their former partner is threatening to take their children away. Even if this is not actually the case, this perception can compound the devastation and start discussions about the future off on the wrong foot. In such a situation, when rational thinking can be hard to come by because of the levels of emotion, it is essential for both parents to do their best to focus on what is right for the children, and put their own needs for validation or security to one side.
Our stock response to the question of “what is normal?” is to say that there is no such thing, as the particular children’s best interests dictate any order that a court would impose. If the matter were to become contentious, the court would look at all of the circumstances of the case to establish what routine would be best for the children, perhaps bearing in mind expert evidence from someone experienced in working with families through separation, and anything else relevant to the decision. As a basic starting point, it is almost always in the best interests of the children to have a continuing relationship with both parents after separation. Arrangements must take into account the realities of childcare, school, work obligations and other responsibilities, and also any sports, hobbies, or after-school clubs which may dictate that certain ways of dividing time are logistically difficult for the children. There can be added complications if the home of one parent or the other is a long distance from school or nursery, meaning travelling times also have to be factored in to every arrangement.
That said, there is a usual bracket for child care arrangements between separated parents. The most likely outcome from the court tends to be that the child will live primarily with one parent and spend time with the parent with whom he or she does not live every other weekend and one overnight during the week, with additional time in the holidays. Every other weekend can mean either Saturday to Sunday, or Friday to Monday, or anywhere in between depending on the child’s age, parental circumstances, and other relevant factors. It is also possible for the child to live at both houses. It is possible that the children’s time will be spent equally with both parents although in practice this is unusual.
The terms “residence” and “contact” replaced the old “custody” and “access” more than 20 years ago, and will themselves be replaced by the new “child arrangements order” next April as part of the government’s review of family justice. This new terminology may usher in more creative thinking about what arrangements are in children’s best interests, and we wait to see how the courts will wrestle with what the new concept means. As regular readers of this blog will know, the government has also signalled its intention to introduce some kind of principle or presumption into the legislation governing children matters on divorce to ensure that each parent’s contribution is considered to be equalled by the court in the case of separation (see our blog here , and note that it’s not too late to respond to the consultation, which you can find here).
Matters relating to children on separation depend overwhelmingly on the circumstances of the particular family. They are not subject to the same rules of strict law and precedent as other areas within the family justice system: the approach to the court takes is very much that the children are individuals, and arrangements that are made must be in their best interests. This is why children matters often lend themselves well to mediation, where both parents can discuss with a trained, impartial mediator what they considered to be right for the children and why, and hopefully come to some kind of plan that accommodates the viewpoints of all concerned, including and especially the children. As we always say to our clients: they are your children, you know them best and love them most – so what do you think is right for them?