During the post-holiday period we see an increase in separations and family law matters. Before Christmas we advised separated and divorced parents on how best to make access arrangements for the Christmas period. Today, as part of our New Year’s Resolutions series of blogs, I will discuss various elements of family law disputes, particularly the most distressing part of family law disputes – dealing with children.
ADR (Alternative Dispute Resolution)
In sensitive family law matters ADR should be exhausted before going down the court route. ADR does not add to the conflict in question, where a Court situation can. It is a less stressful method for the individuals who are already involved in stressful situation. There are many forms of ADR and mediation is usually the chosen method in family law disputes. Mediation is based on the principle that most people can resolve their own disagreements if given the right encouragement. The people in dispute don’t necessarily have to be in the same room. There can be two separate rooms and if they are working well they can be brought together to deal with their dispute in a civil way. The function of mediator is to facilitate an agreement between the parties, not to decide the outcome for them. If mediation doesn’t work, the Mediator gives a recommendation. If mediation does not resolve the dispute the Court will attempt to act in the best interests of the child. There’s a big movement towards the child’s voice being heard. Generally, if the child is mature and at certain age, the Court will take their wishes into account.
Guardianship – Unmarried Fathers
A lot of fathers are unaware that if they are not married to the mother of their child/children, they are not automatically guardians of their child/children. Fathers must proactively apply for guardianship. This poses no problems if the parties are consenting; a declaration is simply signed by mother to state that the father is guardian. This is the most efficient way of doing it without going to Court.
Guardianship does not mean custody or day-to-day care of the child. Effectively, if the mother dies, it means there is another responsible adult to take care of the child and as a Guardian a father has a right to be involved in important decisions relating to the child e.g. religion & education. However, if the mother does not think the father is a good parent the issue of guardianship can be determined by the Court.
Maintenance – Access – Guardianship
The courts take the view that, when it comes to custody, access and guardianship the best interests of the child is the most important consideration. A situation I often see arising is where a parent becomes unemployed and maintenance becomes an issue. While the Courts are very reluctant to wipe out maintenance they will reduce it where the parent’s financial situation changes. This can cause further difficulty between the parents and I always advise that access should not depend on maintenance. The Courts are of the view that it is in the best interests of the child to spend time with both parents and that children shouldn’t be used as a negotiation tool. It is also worthwhile stating that it is in the parties’ interests to reach agreement between themselves rather than having a court imposed arrangement.
Family Law Agreements
There are many different agreements which can be made when you are dealing with family circumstances – cohabiting couples can have cohabitation agreements; people who are getting married can have prenuptial agreements; and married couples who are separating can have separation agreements, court orders by agreement and they can incorporate a parenting plan into their separation agreement. As with all areas of law, it is possible to avoid confrontation and sit down and work out an agreement between the parties.
