In this blog we will concentrate on the rights of separated fathers, who do not live with their children. Parents who do not live with their children, are known as non-resident parent. It is not to say that only fathers can be non-resident parents, however it is still more common for the mothers to be the resident parent. More importantly, there are many misconceptions in respect of fathers’ rights when it comes to child custody and living arrangements. This in return creates a lot of uncertainty and heartache for the fathers. Often enough, fathers give up the fight for their children because they assume they have no chance of winning. Even though many fathers, would love to have more contact with their children, they often agree to minimal contact because they think that is all they are entitled to, becoming gradually estranged from their own children.
As a firm, we strongly believe in equality and that it is absolutely essential for a child to have access and meaningful contact with both parents. This is why we are particularly passionate about fathers’ rights and have a dedicated fathers rights solicitors in our family team. In recent years, more men are becoming truly and deeply involved in their children’s lives and we salute this trend with enthusiasm.
With this blog, we hope that we can shed some light onto the law surrounding parental rights for fathers and perhaps offer them hope and encouragement to pursue a stronger, more meaningful bond with their children.
Fathers Rights: What is Parental Responsibility?
When it comes to fathers rights, first and foremost, we need to examine the concept of parental responsibility.
Parental responsibility is set of rights and obligations the parents, or in some cases the named responsible adult for the child. Those mainly revolve around:
- Providing a home for the child;
- Ensuring they are adequately maintained;
- Ensuring they are safe and their health is looked after;
- Ensuring they are adequately educated.
Having parental responsibility in respect of a child means that you have power to make decisions about the child’s life to ensure the above are met. Therefore, your fathers rights are dependent on this status.
Fathers rights: Who has parental responsibility?
All mothers automatically have parental responsibility from the date of the child’s birth. As for the father’s, there are several scenarios that apply. The father will have parental responsibility if:
- he is married to the child’s mother at the time of the child’s birth;
- If he is named on the child’s birth certificate and the child was born after 1 December 2003.
For all other fathers, while they do not have an automatic parental responsibility, they can still get it in one of the following ways:
- Through agreement with the mother of the child;
- Through application to court for parental responsibility order.
Fathers Rights: Why establishing Parental Responsibility is important?
Your rights as a father will depend on whether you have parental responsibility or not. Having parental responsibility does not automatically mean that you can have contact with your child, but any and all applications for contact with your child will first need to demonstrate that you have parental responsibility for that child, this is why establishing that right is absolutely important.
What rights does a father have?
As a father who has parental responsibility, you have equal responsibilities and rights with the mother. This means that you have the rights to participate in all major decisions in respect of your child, such as:
– what school they should attend and overall how their education should progress;
– what is the best medical and health related course to be taken in respect of your child;
– what religion should they be brought up in;
– where and with whom they should live, etc.
It is important to remember that even if you are not the resident parent, your above rights are not affected. Even in cases where the father has no contact with the child, but does have parental responsibility, he still retains the above rights.
If you are not residing with your child, you can apply to make arrangements for contact with the child. Bear in mind there is no automatic right to see your child, therefore you will need to either agree the contact with the other parent, or apply to the court for such contact, known as child arrangements. This application can be made even if you do not hold parental responsibility for the child. In this case, if making a Child Arrangements Order, the Court should also consider making a parental responsibility order.
Can a mother stop father from seeing his child?
In general, the legal approach is that both parents should be involved in the child’s life. The only exception to this is when the child will be in danger of harm should such contact occur. This would mean that neither of the parents can restrict contact with the other parent without good reason.
In reality, however, things can get more complex and it can be helpful to have a sound legal advice on board when navigating such matters. For instance, if the child is residing with the mother and she is frustrating contact, irrespective of the fact that legally she is not entitled to it, you face a factual situation where you cannot have contact with your child or have a reduced contact. This, however, can be remedied by engaging in mediation with the mother as the mediator will seek to highlight that it is in the child’s best interest to have both parents fully involved in their lives. If this fails, then child arrangement orders from court can be obtained and enforced.
In respect of the objections a mother might put forward to restrict contact with the father, these can be various,but should be concerned with the child’s best interest. Therefore, whenever considering whether contact can be stopped or not, it is the welfare of the child that is central. The risk of harm should be in respect of the child and not other family members. For instance, it is not uncommon for mothers to stop contact with the father, alleging violence, whether physical or verbal, against themselves. It has to be said that allegations of domestic abuse against the mother are normally not a reason for stopping contact, unless the violence has been witnessed by the child, in which case it can be argued that it is indeed harmful to the child.
If there are allegations of abuse against you and they interfere with your access to your child, it is always advisable to speak to a child custody lawyer. They can assess the situation correctly and advise you whether the allegations can be defended or a different approach should be taken. For instance, you might have to attend counselling or other forms of behavioural management classes. You might also be required to have only indirect or supervised contact with your child until such time when it is deemed safe for the child to be in unsupervised and direct contact with you..
How can a father get access to see his child?
As mentioned above, the first step is to ensure that you have parental responsibility. Once this has been confirmed, the next step is to get you the contact that you want with your child. This will involve either getting a child arrangement order allowing you to see your child, or enforcing an existing order.
As we strongly believe in a collaborative approach and avoiding litigation where possible, we advise that you always start with attempting to reach an amicable solution. Our lawyers know all too well that often things are too complicated: there is already a considerable conflict, too many reproaches between the parents, failed past attempts etc. But we also know that often our lawyers have managed to change hearts. A good lawyer is a good negotiator and you might be surprised what they can achieve.
In principle, in most cases we would advise to start with mediation and where that fails, we will get involved on your behalf. If all attempts at reaching an amicable solution fail, then you have the option to apply to the court for access to your child.
The only time where mediation or other forms of amicable solution can and should be dispensed of, is when the child’s welfare is in danger and you require access to the child to safeguard them. In such cases, a relevant application to the court will be made as a matter of urgency.
What application you make for access to your child, will depend on your particular circumstances. For instance, if you don’t have a formal child arrangement in place, you will need to apply for a child arrangement order. This order will stipulate how often you can be in contact with your child, what form this contact will take, who can or cannot be present during the contact etc. There are a lot of aspects in the child arrangement order that need to be taken into account, as such it is important to have an experienced child arrangement lawyer assist you. This can ensure that the arrangement that you obtain is sustainable in the long run. A typical child arrangement order will have provisions including (but not limited to): whether you can have direct contact with the child;which days of the week; what kind of indirect contact you can have while the child is with the other parent; whether the child can stay with you overnight; how will the child’s holiday’s be split; where the pick up and drop off will take place and many other aspects.
If you already have a child arrangement order, but the other parent is not abiding by it, then you may either apply to enforce it or to vary the arrangement, if it is clear that the existing arrangement is not working out. For instance, if there is clear evidence that the resident mother is alienating the child against you, it might be sensible to apply for either increased contact or even to become the resident parent. It will depend on the particulars of your situation and you should always get proper legal advice before starting any proceedings.
What is a joint custody in the UK?
Joint custody is the colloquial name for the legal concept of shared residency arrangements. Shared residency refers to situations where the child lives with both parents. Normally, when the parents do not live together, the child will live with one of the parents, who will be known as the resident parent. This will be the child’s official residence. The other parent, the non-resident parent, will have a right to contact, which can take form of visitations and even overnight stays at the non-resident parent’s place. This contact, however, is usually considerably less compared to that of a resident parent.
In the case of shared residence arrangements, the child will have two places of residence, both parents being the resident parents, despite living separately. Shared residency doesn’t mean that the child will need to split their time strictly 50:50 between parents, but in most cases it will be the case that the child will spend roughly an equal amount of time with each parent. There will still need to be arrangements in place in respect of how the child’s time is split etc.
While joint custody might be suitable for some situations, it might not prove to be possible in others. The courts will always prioritise the child’s welfare and best interest. In any event, whatever the residency arrangements, the child’s life should not be disrupted because of the residency arrangements and the parents should be able to demonstrate that any proposed arrangements primarily caters to the child’s needs.
A common issue related to shared care arrangements, is the maintenance payments. While there is no legal provision that states that there cannot be maintenance payments in the case of shared care arrangements, the fact that the child spends roughly half of the time with each parent makes it unlikely that one parent is spending more with the child then the other. If, however there are grounds for it, maintenance still can be claimed and awarded upon assessment.
Can a father get full custody in UK?
Yes, a father can get ‘full custody’, or more correctly sole care of a child. As with all child related matters, this is contingent on such an arrangement being in the best interest of a child.
The concept of full custody is often misunderstood. In fact, there is no such concept as child custody under the current law in the UK. The correct term is care arrangements for the child and, as stated above, fathers can be the sole carer of the child if the circumstances call for it.
As mentioned elsewhere in this article, both parents have equal rights and obligations before the law, when it comes to their child. There is absolutely no provision in the law that makes mothers preferable as carers for the children over fathers. Therefore, the fathers rights are in no way limited in this respect. It is, however, imperative to understand that getting full custody, or sole care of a child is a rare occurrence. The law encourages for both parents to be actively involved in the child’s life. To this end, the courts will award sole care of the child to one parent only if the other parent is found to be unfit to care for the child or there are serious safeguarding issues regarding that parent. In all other cases, both parents will share the care of the child, commonly with the child residing with one parent and the other having regular contact.
The second and more common scenario, in which we hear fathers asking for full custody, in fact refers to being a resident parent. Therefore, if the question is whether a father can be a resident parent in the UK, the answer is an unequivocal yes. There is nothing that prevents a father from requesting that the child will reside with him. You will need to bear in mind that whether this outcome is achievable, will depend whole on your own circumstances. If it can be demonstrated that it is in the child’s best interest to live with the father, then you will obtain the residency of the child.
Our firm has dealt with numerous cases where we represented fathers who wished to obtain residency of their children. In vast majority of these cases we were able to obtain favourable outcomes for our clients, by showing the existing bonds, the planned care arrangements that catered to the needs of the child in the best way and better means to achieve the best outcome for the child.
If you are struggling to have a more meaningful contact with your child don’t hesitate to contact us. Our experienced lawyers will be happy to assist you. Call us at 020 3372 5125 or fill in the online enquiry form.