Divorce And Children: What Is Fair?

For divorcing parents, issues regarding children can be an explosive topic. Even more so than finances – though, of course, the two are tied together. So in Divorce And Children: What Is Fair? we’ll look at some common assumptions and questions to do with fairness when it comes to children and divorce.

Can you agree child arrangements without the courts?

If you are not in a high conflict situation, it is usually more amicable and less expensive to reach an agreement without a court decision. (If you are in a high conflict relationship you can read more about how to handle it here). You can either do this between yourselves or with the help of a mediator. I highly recommend mediation, even if you have a good relationship with your soon-to-be-ex. 

Mediators are trained in supporting conversations to reach a resolution – they are impartial. They know all the financial, practical, legal and technical issues to cover because they are experienced in this area. So they can help you both cover all the bases you need to, and formulate solutions that work. This will include helping you both work through issues of fairness. 

Remember any agreement you reach between yourselves or with the help of a mediator is not legally binding. You can apply for a consent order to cover your agreement to make it so – which you may want to do to give you peace of mind.

When you can’t agree without the courts

Mediation isn’t for everyone – and that’s when the courts will come in to help decide on arrangements with your children. The courts will want to see that you have attended a MIAM (Mediation Information Assessment Meeting) so you can establish whether mediation is viable for you. (Though there are exemptions – for example if you are in an abusive situation). 

We looked at the factors courts take into account on the blog last week in relation to money. And the welfare of children is their top priority. Which, is, of course, how it should be. However it doesn’t always mean that the court’s decision will be the one you had hoped for. When the courts make decisions about children, the use a different test.

The Welfare Checklist and Paramountcy principle

S1 Children Act 1989 states that when the court considers any question that relates to the upbringing of children or how to deal with any child’s property or income arising from it, the child’s welfare shall be the court’s paramount consideration. In particular, it shall have regard to the Welfare Checklist:

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(c) the likely effect on him of any change in his circumstances;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g ) the range of powers available to the court under this Act in the proceedings in question.


Fairness to your child not to you

Remember that neither you nor the child’s other parents have ‘rights’ to spend time with your children. The court focuses on what is best for your child  – its not about if the time between you and their other parent is ‘fair’ in your eyes.  Here are some other common issues that come up to do with fairness and children, both during and after your divorce. Some relate to how finances (which aren’t strictly about children) and others to Children Act cases – sometimes both come into play and this can lead to confusion. These are all issues faced by my clients over the years. We’ll look at what can happen, and how to deal with it if it does. 

Do you have the right to remain a stay-at-home parent? 

In short – no, you don’t. As we saw on last week’s blog, the courts will examine divorce on a case-by-case basis, using the factors listed in Section 25 of the 1973 Matrimonial Causes Act. How they apply those factors will depend on your unique circumstances and the interpretation of the judge. 

So, it might be that a judge decides that it is in the best interests of young children for a parent to remain at home. Equally, they may order that both of you optimise your earning potential – as that can also be seen as being in the children’s best interests. And there are other options. For example, the court may order your soon-to-be-ex to pay a sum for a fixed period of time to allow you to seek work. 

If you and your soon-to-be-ex agree that you should remain at home to look after the children, and be supported by their income, or vice versa, that’s fine. I advise confirming it via a consent order in case they change their mind. But you don’t have any automatic right not to do paid work. And that knowledge can be hard to take if you had planned your parenting around being at home. 

What if their other parent has different rules?

One of the most enraging aspects of life as a divorcing parent is what the other parent does. You want the children in bed by 7.30pm, when they’re with your ex they stay up until 9pm. You have a no sweets in the week rule, yet they come home to you with tales of haribo and bubblegum after school. It’s infuriating – I get it. 

The ideal situation is that the two of you sit down together and create a parenting plan. You can read more about how to create a parenting plan here. 

Essentially it is a document to cover the guidelines both of you will abide by with regard to your children. A parenting plan isn’t a legally binding agreement, but you can use it as the basis of a consent order if you want to get key principles or rules confirmed by law. 

Sometimes, however, the other parent doesn’t want to play ball. You don’t get chance to have a collaborative approach to parenting going forward. And if that’s the case, you have to let go. You can only control what you do – you have no say over what the other parent does (unless there are safeguarding concerns of course).

That’s where parallel parenting comes in. Rather than be co-pilots on the same parenting plane, you each do your own thing. And be honest with the children about it. When they’re with you – these are the rules. They’re there because you’re the adult here and have decided they’re for the best. When they’re with the other parent the rules are different. 

My clients tell me they fear that this will be confusing and upsetting for their children. But children are adaptable and resilient. Whatever age they are they can grasp that different places have different rules – just like things are different at school and home. 

What if the other parent showers them with gifts?

Another common issue is that your soon-to-be-ex starts flaunting their cash and buying all sorts of extravagant gifts for your children. Again, this is frustrating and beyond annoying. And, again, it’s not something you can control. 

It’s hard to just let this wash over you, but remember, the gift-buying most likely comes from either a place of kindness or a place of fear. Their other parent might genuinely want to ‘treat’ the children as a way of trying to make life better at a difficult time. If you suspect this is the case and your relationship is amicable, you could gently raise the inequality issues and your concerns.

If it’s coming from a place of fear, it’s because they want to build a connection with your children. Yes, there might be the more ‘nasty’ motivation to be the favourite parent too. But deep down, it’s because they do care – they want to be liked and loved by your children. Seeing it like that helps you view their actions with compassion, and, in all likelihood, pity. And believe me, your children will see through it eventually. Even if they spend months talking about all their swanky kit and new clothes. That won’t replace the bond they have with you. 

Focus on fairness for the children

Ultimately, when it comes to divorce and fairness with children, it’s about what’s fair for them – not you. That can be a truth that’s hard to hear. But your children have a right to develop a relationship with both parents unless there are serious reasons to believe that would be unsafe. That principle is at the heart of court decisions too. 

In your children’s eyes, love and security are what matters most. Yes, they may be temporarily wowed by fancy holidays or presents. But if you consistently focus on meeting their needs as best you can, that’s as much as you can do. They’ll know you love them and have their best interests at heart. And when things get tough they’ll know who they can turn to. Hopefully, they’ll have both parents emotionally available, come what may. But you can make sure they always have you. 

Get the support you need

Divorce is always hard. When you have children it becomes even more emotionally and practically complex. I can be here for you every step of the way. From setting boundaries – both with the other parent and with your children. To knowing how to manage when your ex consistently breaks agreements – legal or otherwise. I can support you both emotionally and with the legal information, you need to get on track. 

Want a chat? Book a free call in here. 

About Emma

Emma Heptonstall, the Divorce Alchemist is the author of the Amazon best selling book How to be a Lady Who Leaves, the Ultimate Guide to Getting Divorce Ready. A former lawyer, Emma is a family mediator and founder of Get Divorce Ready the online self-study and group programmes. Emma has been featured on BBC Radio, The Telegraph, the iPaper and in Marie Claire Magazine. To find out more visit www.emmaheptonstall.com

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