What are the Mothers Rights after a Divorce?
What are Mothers Rights?
As specialist family solicitors we deal with many different cases that touch the mothers rights. We often need to address questions in respect of such right, their boundaries and ways to enforce them. In this blog, we will mostly concentrate on mothers rights in divorce, that is the rights mothers have during and after divorce and what outcome can they expect in case of child arrangements following a termination of marriage.
When we speak of mothers rights, we refer to the legal rights and responsibilities that mothers have in respect of their children. According to the English law, all mothers and fathers have rights and responsibilities when it comes to children and their upbringing. This is known as parental responsibility.
Parental responsibility deals with myriad of issues and covers aspects such as:
- Providing a home for the child;
- Protecting and maintaining the child;
- Choosing and providing for the child’s education;
- Agreeing to the child’s medical treatment;
- Disciplining the child;
- Naming the child and agreeing to any name change;
- Taking care of the child’s property, to conserve the child’s interest.
These are very serious responsibilities and as both parents are equally responsible for the above named decisions, conflicts can appear. When the family is together and the parents share bonds of affection, these conflicts can be resolved more easily. It is not unheard of for cohabiting parents to have to resort to court to achieve a solution in a particular matter. However, the bulk of the court cases comes from separated parents.
The Rights of a Mother in a Divorce
As mentioned above, questions in respect of the rights of a mother more often appear in cases of a divorce. Our divorce solicitors routinely find themselves in need to advise the clients in respect of divorce rights for mothers. Despite the fact that legally both parents have equal rights and responsibilities when it comes to the child’s upbringing, there are numerous nuances to the mother’s rights vs father’s rights. This is the reason that we make sure to employ a specialist approach. Our family solicitors are well trained and skilled in understanding the cultural backgrounds and family dynamics, to ensure that the solutions we offer are not only in the best interest of the child and our client, but are also capable of withstanding future challenges.
Most common aspect that the clients approach us for, in respect of the mother’s rights, is obviously the child custody. Understandably, the legal rights as a mother become an important issue whenever child arrangement is discussed as part of divorce proceedings. In the UK, both parents normally have custody rights. The so called ‘child custody’, in fact refers to the child’s legal residence, as both parents retain their parental rights, even after the divorce and are expected to continue to co-parent in the interest of the child. The child, can however, have main residence either with one parent, or both. In the first case that will mean that the child will be mainly living with that parent and visiting the other parent occasionally. In the second case, the child will be spending equal time with both parents, splitting their time between two households.
Therefore, the rights that mothers have in a divorce is the same as at any other time. The arrangement to live and care for their child that they will eventually end up with, will depend on multitude of factors. However, it is important to remember that in most cases, your former partner and the father of your child is going to remain engaged in the child’s life for a very long time. For this reason, it is absolutely vital that an arrangement is put in place which will ensure a long-term solution, rather than be a cause for friction and frequent conflict. This is where having an experienced child arrangement solicitor guide you is important. Our lawyers will account for possible future scenarios and ensure you can reach a lasting solution for yourself and your child.
Mothers Rights vs Fathers Rights
Quite often, couples that are in process of getting a divorce tend to view parental rights as being in opposition: mothers rights vs fathers rights so to speak, and ask our divorce lawyers to explain what their respective rights are. As mentioned above, according to the UK law, there are no distinctive rights for mothers or fathers. Both parents are meant to be equally engaged in the child’s upbringing. We’ve already mentioned that both parents have parental responsibility in respect of the child. The only clear difference is how this parental responsibility is acquired.
In the case of the biological mothers rights, parental responsibility is automatic and is acquired from the date the child is born. Adoption is an entirely different scenario, where parental right is acquired by both adopting parents at the time of the adoption.
For fathers, there are several scenarios. The father will have parental responsibility if at the time of the child’s birth, he is married to the mother and is also named on the birth certificate. It is important to note that there is no requirement to be the biological father of the child to have parental responsibility for the child. For those who fail to meet this criteria, it is possible to apply to get parental responsibility afterwards. In the case of civil partnership, the law mainly addresses the issues of parental responsibility from the perspective of the same sex couples. In this case, if the couple was in partnership at the time of the treatment, they will both be considered as parents of the child and will have parental responsibility.
From the point of having parental responsibility, the parents have equal rights and responsibility in deciding how the major decisions in respect of the child will be taken. Ideally, the parents, even when separated should be able to reach an agreement on these issues. Having a well thought out and drafted child arrangement order can assist with this, when parents are separated. However, even with the best drafted arrangements, it is possible that there will be aspects that cannot be predicted or agreed upon beforehand. For instance medical treatment, sudden need to change the way the child is educated or even their residence. In case the parents cannot agree on these aspects, the courts can intervene. Prohibited steps orders and Specific Issues applications are designed to address such instances. Our child custody solicitors can assist you with obtaining the relevant order where this is needed.
The Mothers Rights Regarding Child Custody
When it comes to the child’s residence after the parents have separated, there are unfortunately a lot of misconceptions. It is important to understand exactly where you stand in respect of your rights as a parent, before you fully embark into a legal battle for your child’s custody. Broadly speaking, our lawyers most see too category of mothers. The first are those who consider that since they are the mother, the child will be automatically ordered to live with them. Another, smaller category, are the mothers who are terrified of losing their children to a more financially secure ex-partner. Neither of these ideas have any basis in the reality. As we have already mentioned, the English law looks at all the aspects of child arrangement, including the residency of the child, from the prism of the child’s welfare. Therefore, if the courts will consider that it is in the child’s best interest to reside with the father, they will order this. It is, however, to be stressed that the fact that one parent is financially better off is not a strong factor. This is not in the least because the child maintenance is paid by the non-resident parent as a fraction of their earnings, therefore, the child’s financial well-being will be assured irrespective of their residence. Most important aspects that will be taken into account are: The welfare of the child and the home in which the child is most likely to mature into a happy and balanced adult.
It is therefore, paramount that you get the right legal advice and have a solid legal team fighting your corner in the matters of child custody.