Being able to see your children after a divorce is often a prime concern when parents separate. Inevitably the children will stay with one parent, though there are some successful child sharing arrangements, especially where the break up is relatively amicable.
Avoid a toxic split
Divorce, it isn’t always amicable and that is when real problems can start and being able to see the children can sometimes be used as a weapon against the other parent. Accusations can even be made about abuse or coercion and control.
That’s likely to have a negative effect on children who might appear to “side” with one parent against the other. The custodial parent might claim that he/she is only doing what the children want ….and they don’t want to see the other parent.
Am I legally entitled to see my children?
It is important to remember that seeing your children is not a “legal right”, or at least not for you. The courts will approach any issues from a starting point that the children have a right to have a relationship with both parents. That is, provided it is safe for them to do so. The court is under an over-riding duty to make decisions in “the best interests of the child”.
The court will frown on any attempt to take matters into your own hands. So, even if things are particularly strained, don’t just turn up at the house, an inevitable scene will follow that will help no one. Don’t just turn up at the school or nursery – not only does that put the school/nursery in a difficult position but it can be very embarrassing for your child: a scene in front of their friends is the last thing they want.
Will the court give me rights to see my children?
Generally speaking a court will expect both parents to be spending time with their children. So why when the matter gets before them won’t they just make an order for that to happen? At a first hearing the court can only make a substantive order about the time a child spends with its parents if both parents agree.
The court may be reluctant to interfere with the immediate position until it has more information about that family’s situation. This is especially true where allegations about conduct or behaviour have been raised. It won’t take a chance with a child’s safety.
The district judge or magistrates may express views and attempt to persuade a reluctant parent to come to an agreement but that is as far as they will usually go at a first hearing. They will want a lot more information and an opportunity to test what the parties are claiming before making any final decisions. However hard it is, patience will be required.
Stephen Root is one of Yorkshire’s leading family lawyers. Highly praised by industry guides Chambers and Partners and Legal500, he has been supporting divorcing couples for over 30 years.
Berwins' dedicated and friendly team is here to help. If you have a matter you would like to discuss with Stephen and the team, please get in touch by calling (01423) 509000 or use our contact form online and we will get back to you as soon as possible.