Honest answers - children arrangements for separating and divorcing couples

We explore some common misconceptions about how the courts decide on the best arrangements for children.

When determining arrangements for children, the courts always have the best interests of the children in mind. It will consider all relevant factors, including what the children want and what the status quo has been. Below we take a look at some of the common assumptions and misconceptions concerning children arrangements for separating and divorcing couples.

The children automatically stay with the mother

When a family separates, it is often assumed that the children automatically remain with the mother. There is nothing in law that suggests that this will be the case, and no assumption in favour of the children remaining with either parent.

Ultimately, any arrangement is possible, as long as it is workable for the parties and in the children’s best interests.

We would always suggest taking initial legal advice. The intention is not to commence court proceedings but to better understand your rights as a parent, how the court approaches these matters and therefore how you should approach them.

The usual arrangement is that the children see their father every other weekend

There is no such thing as a usual parenting arrangement as each family is different and what works for one family may well not work for another.

Parents need to think objectively about what arrangements would work best for the children. What is important is not how many days and nights you have with the children, but how that time is spent with them. 

Unmarried fathers have no rights

An unmarried father can have the same parental rights as the mother if the child’s birth certificate names them as the father, or they have Parental Responsibility.

Parental Responsibility can be granted by the court through a Parental Responsibility Order, or the parents can sign a Parental Responsibility Agreement.

You won’t be able to see the children if you don’t pay maintenance

Child Maintenance is where one parent pays the other money towards the upkeep of their children. Whether or how much a parent pays in child maintenance is not a criteria for how much time a parent can spend with their child/ren.

Any decision should be led solely by what is in your child’s best interests and generally speaking, it is best for children to have a relationship with both parents.

You have committed adultery so you will not be able to have the children living with you

If a court has to decide where children should live, they consider their welfare and all of the circumstances. Detailed legal advice will reassure you about your individual situation.

I can stop my ex introducing the children to their new partner

Although, instinctively, a parent may want to stop the children meeting the ‘new partner’, the best advice is to stop and think honestly and objectively about the situation. Your actions should be guided by what is best for the children and personal feelings will need to be set aside to do this.

The court generally consider that if one parent is in a new relationship that is likely-to-be long term, then the children need to have contact with the new partner, even though this is often distressing for the other parent.

It is always helpful to get legal advice on how to approach situations such as these as the way these issues are managed can impact on how you co-parent moving forward and on any decision by the Court if it needs to become involved. 

Read our article ‘Can I stop my ex introducing the children to their new partner?’ for more information, or get in touch with a member of our family law team.

When the children are with you, you are not to take them to your mother’s house

Where Grandparents have been part of a child’s life, it is another loss to them if they are no longer allowed to see them. Unless there are particular reasons why grandparents should be prevented from spending time with children, children can be taken to visit their grandparents.

I will take the children and move 300 miles away

There is nothing to prevent any adult from moving to a different part of the country, however, the courts have a say in whether the children should move or not. The court could, for example, decide that the children should remain with the parent who is staying in the area where the children are at school, have their friends, and possibly extended family.

If my ex does not return the children I can call the police and they will return them to me

In this situation, if both of you have Parental Responsibility for the children, the police will not usually get involved in returning the children to your care. If there is a Child Arrangements Order in force the police may assist or suggest that such matters are considered to be ‘civil’ disputes which need to be determined by the Family Court.

The exception to this being where the police believe that your children are at risk of harm in which case, the police are usually required to contact Children’s Services.

I will tell the court about your depression and anxiety, and you won’t be able to see the children

The court always puts the welfare of the children first, particularly their safety. Each case is determined on its unique set of facts but as long as the children will be ‘safe’ it does not automatically assume that parents who suffer (or who have suffered) from depression will not be able to see their children.  

Get in touch with SA Law's Family Team

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© SA LAW 2021

Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them alone. You are recommended to obtain specific advice in respect of individual cases.

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