29 September, 2021
We often have clients wanting to have "custody of their children". This terminology is American and is probably adopted from Hollywood movies. The UK terminology used to be residence and contact; however, the courts have moved away from this. Out of fairness the terminology now refers to a "Child Arrangements Order" and who the child shall "spend time with".
In essence, the person who the child "spends time with" tends to be the person who has the least time with the children. If there is a primary carer on behalf of the child, the court order often reflects that by stating "The child lives with..." that parent. The question, really, is what is the benefit of having such a declaration in a court order?
The main benefit is such a recording on a court order is that the person who is named as the person with whom the child lives with has a right to take the child abroad for up to one month without the consent of the other parent or the court's permission. The same right does not apply to a person with whom the child "spends time with". If there is no agreement, that person would need to make an application to court for a Specific Issue Order. This issue is further complicated if the person with whom the child lives does not have a Child Arrangements Order and takes the child out of the country without consent or permission from the other parent. Technically, this would be seen as wrongful removal and could be dealt with as child abduction.
Despite difficulties, it is always better for parties to communicate and agree arrangements as best they can to avoid litigation. Bringing litigation can not only cause further upset between the parents but also it has the potential impact of legal fees and, ultimately, the decision may be made by a judge or the magistrates, meaning that neither parent has control over that.
There is also the scenario of a Child Arrangements Order where the children spend equal time with both parents and, therefore, the order states that they live with both parents. In those circumstances, they both have the benefit of being able to take the child out of the country for up to one month without consent.
For more information contact Rubina Vohra in our Family/Divorce department via email or phone on 01254 580 000. Alternatively send any question through to Forbes Solicitors via our online Contact Form.