It has been a long-established belief, that where custody battles are concerned, the Family Court’s favour Mothers.
It is indeed the case, that previously the ‘tender years doctrine’ was applied by Judges, who typically presumed that younger children were best placed with their mother, following the breakdown of their parent’s relationship.
Why? Can a father not feed a baby? Change a nappy? Pack a lunchbox? Of course, they can.
Does the law still apply this idea? Thankfully not.
Today, the Courts do not adopt a ‘maternal presumption’, and rather, they strive to consider what is in the best interests of each individual child.
It is now the starting point for Judges in cases concerning child contact that, unless compelling evidence suggests the contrary, it should be accepted either parent is equally well equipped with the skills to raise children of any age, and indeed that children should have a right to a relationship with both of them.
Despite this, it is still disheartening to hear father’s contacting our office assuming that they will be the second choice to care for their children. This is not the case.
So what do the Courts consider now? Many things.
When deciding where a child shall live, who they shall spend time with, and when such contact will take place, the Court and other professionals are guided by a criteria known as the Welfare Checklist.
The Welfare Checklist broadly encompasses seven key criteria which must be considered when assessing what is in the best interests of children.
Naturally, if a child’s feelings are clear and the Court is satisfied that they are of an age where they can make a reasoned decision, the Court will, of course, take their wishes into account. This does not necessarily mean that the Court will simply accept what the child wants, but rather their wish will influence the ultimate decision.
“But my 6 year old might not know what is best for them!?”. We know, and fortunately, so do the Courts. When considering the wishes of children, the Court looks closely at their age, and why they may be expressing a particular view. I am sure you can imagine that younger children’s priorities are not the same as that of an elder child. Does one parent let them eat more sweets, or let them play on their X-Box longer? Probably.
Does this mean that the Court should place them with said parent because the child says so? Definitely not.
So, what about children who are too young, or immature to express any form of rational view? It is these children, for whom the other six principles are key, to determine appropriate living and contact arrangements.
Obviously, their physical, emotional and educational needs are a key consideration, as is the capability of either parent to meet such needs. It is important to understand that the Court is not looking at who has more money, a bigger house or a better car. Quite simply, the Court does not care, provided that a child’s basic needs can be provided for.
The impact which a change to their current arrangement may have on a child is also important. Unless there is a good reason, a Court is unlikely to want to separate siblings or remove children from their school if they are settled. There will always be an exception to the rule of course if it can be shown that it would benefit the child, but on the whole, the Court’s will seek to minimise disruption to children’s lives.
Naturally, if there is any suggestion that either parent poses a risk of harm to a child, then the Court will need to take this suggestion very seriously. It may be that an allegation has been made maliciously by one parent, to try and support their own case for custody. These cases are easily weeded out by CAFCASS and the Court, who are trained to identify such scenarios.
The above list of considerations is by no means exhaustive but gives an idea of the types of things which the Court looks for when assessing the best interests of the children. It may have once been commonplace for children to stay with their mothers, but fortunately, the law has now adopted a far more sensible approach!
If you require any help, please don’t hesitate to contact me on 0191 2846989 or email@example.com
If you need help with your divorce or separation, then why not contact us for a Next Steps Divorce Advice Session and to see how we can help you. We can be contacted on:
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