In an ideal world, the family unit into which a child is born would stay together and both parents would function as partners in raising that child. Unfortunately, we don’t live in an ideal world and families do break down and couples divorce. When they do, without doubt, the most difficult issues to resolve are which parent should have the day to day care of the children and how much the other parent should see them.

The issue of where a child lives is called residence. Whereas contact is the term applied to the extent to which the non resident parent is able to communicate with their child. As such it covers a broad spectrum of situations from being able to send e-mails, birthday and Christmas cards to their child (indirect contact) to having them stay on their own for weekends and holidays (staying contact).

Usually, both parents are able to agree residence and contact issues between themselves, but if they can’t then it can often fall to the family courts to find a solution. When this happens, their guiding principle is the best interests of the children. Other than that, there are very few hard and fast rules for deciding the matter because every situation is different. That said, a few myths have grown up over recent years about how the family courts approach such matters.

Divorce Courts - In Favour of Mothers?

Perhaps the most enduring myth is that the family justice system is biased in favour of mothers. That is not the case. When deciding which parent is best placed to care for the children on a daily basis, the court will assess which parent is best placed to do that irrespective of their gender.

However, even in this age of gender equality, it is generally the mother who takes the lead role in caring for the children within the family unit. That is not to say that there are not hands on fathers out there - there are many and they do a fantastic job. But it is still often the case that the father is the main bread winner and the mother has to structure her job around looking after the children or doesn’t go out to work at all.

If a family with this structure breaks down, all things being equal and for the sake of continuity for the children, it makes sense to base the children with the mother, especially where the children concerned are very young. The father’s contact with the children would then be structured around this. As a result, it can seem that the family justice system favours mother over fathers, but it doesn’t, it is simply reflecting how most families in our society still tend to organise themselves.

Increasingly, the family courts are granting shared residence between parents. This does not automatcially mean that the children split their time equally between the homes of both parents (although it can mean this). Instead, it is like a legal wrapper that is put round what is in reality a residence and contact arrangement in order to demonstrate that each parent has equal status in the children’s lives even though they may spend unequal time with them.

Contact for the Non-Resident Parent

This article mainly concentrates on residence, but more often than not, most problems between separated parents tend to focus around contact.

It can sometimes be a struggle for parents who do not have residence of their children to get to see them as much as they would like, or at all. Either the resident parent has genuine concerns about their ability to look after the children properly when they are having contact with them, or they allow the upset from the relationship breakdown to spill over into matters concerning the children: in short, contact is being used as a weapon.

Ultimately, if the parents cannot resolve the issue of contact, the non resident parent can apply to the court for a contact order (or sometimes a shared residence order). The court will assess the level of contact they are requesting and if it feels that it is in the children’s best interest, it will make a contact order for that contact, or any other contact arrangement it thinks is more suitable.

Regrettably, sometimes the contact order doesn’t resolve matters and the initial problems still persist. If this happens, the court has a number of options up its sleeve to enforce the contact order. Following recent changes to the law, the court can now:

• Require a parent to take part in an activity which promotes contact such as advice sessions, classes or counseling;
• Order a parent who has frustrated contact to carry out between 40 and 200 hours unpaid work (community service);
• Compensate the other parent for any financial loss they may have suffered as a result of contact not taking place without good reason.

Changing the Residence of a Child

However, perhaps the most far reaching sanction the court can bring to bear is to change the residence of a child to the other parent (provided they want it and are able to demonstrate an ability to look after the children). It will not do this lightly, but in most cases it will be in a child’s best interest to have contact with the non resident parent and if the resident parent is preventing this, they are effectively harming the child which in turn suggests that it may not be in the child’s best interest that they continue to have residence.

At the end of the day, the majority of children issues following the break up of a family can be resolved sensibly between the parents themselves, which must be the best thing for all concerned. However, if parents can’t resolve their differences and the family court has to step in, its view will not be coloured by the emotional fall out between the parents following the break down of their relationship. Instead, it will order a solution based upon what is considered to be in the best interests of the children and there could be far reaching consequence for any parent that disobeys the court’s order.

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