Although the words “custody”, “residence”, “access”, and “contact” are commonly referred to by parents, they have been replaced by the umbrella term “child arrangements”. A Child Arrangement Order addresses residence (custody), now referred to as a “live with order”, contact (access), and shared care. But what rights does a father have? Read on for more information.
Does a mother have more rights over their child than a father?
The starting point in law is that every child has a right to have an ongoing and meaningful relationship with both parents. Most parents feel the “right” is theirs, however the court views it slightly differently and usually considers it as the child’s right to have a meaningful relationship with their mother and father, because it is in their best interest and long-term welfare. A father’s rights, therefore, are just as important as the mother’s, and on that basis, the father has as much right to their child living with them for 50% of the time as much as the mother does.
Generally, both parents have a right to care for their children and are equally responsible for their upbringing. However, a father’s rights can be affected by whether they are named on the child’s birth certificate and parental responsibility.
What is parental responsibility?
If both parents have parental responsibility, described by The Children Act 1989 as “all rights, duties, powers, responsibilities, and authority, which by law, a parent has to the child”, they are jointly responsible in law for them. A father will automatically have parental responsibility for a child if they were married to its mother at the time the birth was registered.
Unmarried fathers have parental responsibility if they attended the registration of the birth with the child’s mother and are named on its birth certificate. If neither of these situations applies, parental responsibility can be obtained in one of two ways: either entering into a parental agreement with the mother (and all those who hold parental responsibility), or applying to court for a parental responsibility order.
What matters would a mediator or court take into consideration when dealing with residence issues?
If parents cannot agree on child arrangements, they might find it useful to consult a mediator or arbitrator and take legal advice before launching into a court case.
When considering what arrangements should be made for children, their welfare and what is in their best interests is the main concern, which may not necessarily be what one of the other parent wants. For example, if a mother does not want a 50/50 shared care situation, although the court or mediator will take on board any concerns, in the absence of any serious issues, it can disregard the mother’s wishes and focus on the child. In the end, for a child to retain a good and loving relationship with both parents is fundamentally in the child’s best interests and they will make orders to ensure this happens.
The mediator or court will follow the welfare checklist, as contained in The Children Act 1989, which covers issues such as the wishes and feelings of the child, their age and understanding, and their physical, emotional, and educational needs. They will also take into account the evidence, including reports from CAFCASS, who meet with all the parties and children before making a recommendation to the court.
Of course, there are circumstances where a court will be disinclined to assist a father’s contact, where there is a very real concern for the child’s welfare and safety. This is usually relevant in cases where the father is violent, abusive, or there are issues around substance misuse. These considerations apply to mothers as well.
If you are concerned or wish to have a better understanding of your rights to see your child or want shared custody, it may be sensible to seek legal advice and consult with a specialist family solicitor.
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