Children and Divorce

 

 

In cases of divorce where there are dependent children it is necessary to disclose this fact to the court at the same time as issuing the divorce petition. This is so that the court can satisfy itself that the welfare of the children will be taken into account in the divorce process. The information is disclosed by means of a form called a "Statement of Arrangements for Children" which the person issuing the petition is expected to complete.

The form is straightforward and asks for details of the children - their names, ages, dates of birth etc. It also asks for information of their schooling, with whom they live, whether they have any disabilities or special needs etc. More significantly, it asks for details of arrangements for the future - with whom the child will live, arrangements for future contact with the absent parent, any maintenance arrangements etc.

In practice the exact future details may not yet be known. It may be, for instance, that the matrimonial home is to be sold and each parent is to buy a home of their own and so perhaps there may be many things left to be worked out. In fact, it is not necessary to be too precise and generalities are often sufficient at this stage. "Child will live with mother and have frequent contact with father," for example, is probably quite enough (if such is the case). Many couples are able to agree these matters without any difficulty and so not only the petitioner (the person who issues the divorce petition) but also the respondent (the person who receives it) may be able to sign the form. The respondent should always be asked to do so if at all possible and very often this is as good a way as any of starting the divorce process because both parties have to start thinking about things like the future arrangements for the children.

If both parties do sign the form and it bears both their signatures when it is filed with the court that indicates to the court that there is no dispute in relation to the children and that the children's welfare has been taken into account. In the overwhelming majority of cases like this there will be no further action required by the court and the parties will be left to work out the details of the arrangements between themselves. Sometimes it is not possible to obtain the respondent's signature to the form before filing the divorce petition (because, for instance, the parties are not on speaking terms) but this still does not mean that a court will be called upon to make any orders in relation to the children.

What happens in this latter case is that the Statement of Arrangements for Children form will be completed by the petitioner alone and when the divorce petition is served on the respondent he/she will also receive a copy of this form. If the respondent takes no further action the court simply assumes that the arrangements set down by the petitioner are acceptable and again will not intervene. In order to get the court to intervene the respondent has to go further and complete a form (currently CHA10D), pay a fee and specifically ask the court to decide on matters in relation to the children.

If the respondent has not signed the statement of arrangements form before it is lodged with the court together with the divorce petition there is every likelihood that he/she will not be happy with its wording in every particular. It will also, of course, very probably be the first time that the respondent has seen such a form. Under such circumstances it is not surprising that people often regard receiving such a form with some suspicion and they are nervous about what they should do about it in case they are in some way "signing their rights away". It is hesitation over this form (and very often the other questions on the Acknowledgment of Service) which frequently causes people to delay in responding to divorce petitions. At this point most people seem to take legal advice.

If, for instance, the petitioner is the mother and she has completed the Statement of Arrangements for Children form along the lines of, "Children will live with mother and have reasonable contact with father," the father will almost certainly want to know what "reasonable contact" is and he may wish to be more specific. For example, he might want it specifically mentioned on the form that the children are to spend alternate Christmas days with the absent parent. These anxieties are perfectly natural but in fact most such anxieties can easily be allayed.

When a marriage breaks down it is stressful for both parties and there is very often some mutual suspicion . This not unnaturally tends to rub off onto any arrangements affecting the children. It is common enough, for example, for a spouse to say, "Well, you're not paying me enough maintenance so you are not going to see the children." This is, of course, quite wrong but in the great majority of cases this type of problem is resolved over time (perhaps months) and the parties then settle down into a quite satisfactory pattern of contact with the children. This phenomenon is very common.

The point is that there very often are problems initially for one reason or another but as time passes these problems do more often than not resolve themselves. It is important to understand that matters relating to children can be brought before a court at any time and nothing is final because the courts will always decide any particular issue on the basis of what is in the particular child's best interests at that particular time. The Statement of Arrangements for Children, therefore, is not a binding document in any way and more often than not it is merely a statement of intentions. Even if those intentions are not entirely acceptable to the respondent it can be sensible to wait to see how things develop before asking a court to intervene. Matters can, and do, change over time.

It is worth bearing the foregoing in mind because the number of cases coming before the courts involving children when a relationship breaks down is relatively quite small in relation to the number of children involved. Most people do work out more or less satisfactory arrangements without any court intervention and the paragraphs above describe how this happens in the context of divorce proceedings. Nevertheless, there are some intractable cases where it is absolutely necessary to ask the courts to decide. One parent may steadfastly refuse to let the other parent see the childen at all, for example. Or there may be threats to take the child to a foreign country etc. In cases like these the absent parent can either simply acquiesce in this behaviour or he/she can ask for the assistance of the court.

Although the forms to be completed are slightly different the basic procedure in cases where there is a dispute about what is in a child's best interest is much the same in all cases. The foregoing has described the procedure involving the "Statement of Arrangements for Children" form within the context of divorce proceedings but disputes involving children can arise in other contexts - between unmarried parents, between parents and child or between child and grandparents etc. In fact, any person with a legitimate interest can bring issues concerning the welfare of a child before the courts and the basic procedure is the same whether there is a divorce or not. Please continue if you need to know how these matters are dealt with.

Please contact David Terry at David_Terry@dterry.demon.co.uk if you need specific advice or assistance. When relationships break down most problems relating to children are resolved between the parties (with lesser or greater difficulty) but when the intervention of the courts is required legal help is almost always sensible.