Saracens Blog

Fathers rights to child custody | Family Law

Fathers rights to child custody | Family LawIt seems that you can’t look at the news without another celebrity divorce hitting the headlines.

This time it’s the divorce of Tom Cruise and Katie Holmes and the issue of child custody of their daughter Suri. Katie Holmes was said to have commenced divorce proceedings in New York as it favours mothers on issues of child custody. They have now managed to resolve their issues with Tom agreeing that Katie will be the primary carer with child custody and he will have generous access or contact with his daughter.

It does however raise an interesting issue and one that affects many separated parents; should mothers automatically have child custody? What about the fathers rights to child custody?

This will resonate with many in the UK who see the English judiciary persistently favouring mothers on the issue of child custody or residence as it is known in the UK.

Is it right that where both parents are equally hands on in raising their children, when the issue of child custody arises, preference is given to mothers simply because they have given birth to the child?

Although legally there is nothing preventing the father from acquiring child custody in reality it seems that the only time that the father’s right is considered for child custody is where the mother has a history of drug, alcohol abuse or mental health issues. Almost on all other occasions where both parents are equally capable of caring for their child, the mother will be regarded as the natural choice for child custody.

Father’s are resigned to alternative weekend contact, and half the holidays.

Many of those working in family law and within the judiciary recognize and are frustrated by the inadequacies of the current system.

The fathers that have regular contact or access with their child are the lucky ones.  It is the fathers that are persistently denied child contact or access without justifiable reasons that are caught within the legal system.

When negotiating arrangements for child custody or contact, the general principal is to adopt a conciliatory and non-confrontational approach which would suit the child.  In most cases the parents simply require the assistance of solicitors to resolve their issues and they are then able to continue with the child contact arrangements between themselves.

However, there are some cases where the other party is so hostile to any form of negotiation. They require the solicitor to think ahead and prepare for any eventuality.  In these cases it is difficult not to get caught up in the parties’ problem which inevitably involves a pendulum of correspondence between the parties. Such scenarios need to be avoided as not only does this increase costs, but it also entrenches the parties against one another, thereby making it very difficult to reach an amicable solution.

With huge public funding cuts, it is inevitable that legal aid will only be available to be a limited number of people; this will also include victims of domestic violence.  Those who don’t fall into the criteria will have to fund their own cases.  The result will invariably see a large increase in litigants in person, conducting their own cases, and thereby a greater burden on the courts.

As a further result, there is potential for there to be a rise in false allegations of domestic violence in order to receive public funding. Once an allegation of violence is made the courts are extremely cautious to order any child contact until and unless there is clear evidence regarding the same. This means further delays for the parent seeking contact.

Of course, in genuine cases of domestic violence there is a great need to be cautious for the welfare of the child.  But, where the allegations are not genuine and are merely made to prevent the other parent (usually the father) from having contact, that parent will have to undergo the necessary checks to satisfy that he is not a risk to the child.  Only then will the courts consider making an order for contact.

Unfortunately, the length of time it takes to carry out the necessary checks only increases the time that the father cannot have contact with his child.  Even when it is established that the allegations were false the courts are unwilling and reluctant to place any sanctions against the parent who made the allegations, even when that parent goes on to breach contact orders.

The recent government review of the current system has attempted to address the imbalance and ensure greater rights to fathers seeking contact.  One of the recommendations is for parents to enter into a parenting agreement and for cases to be resolved within 6 months. It will be interesting to see what changes these will bring to the current system and whether there will be any improvement for father’s rights to contact.

As part of the Government’s reforms, they have introduced the idea of a legal presumption of shared parenting. This has lead to concern that parents’ rights will supersede that of their children, and a risk of parents becoming more litigious in trying to establish their rights.  Separated fathers on the other hand consider it a step in the right direction with the parental rights more equally distributed.   If the review is implemented it will be interesting to see whether the reforms will lead to improved father’s rights to child custody.

 

Huma Mohyuddin

Family Law

Saracens Solicitors


  • Pingback: Human Rights Solicitors London | london solicitors, lawyers in london, lawyers solicitors london

  • looloo

    Mothers should automatically have full parental responsibilty unless they agree to shared parental responsibility. I have a manipulative and controlling husband who I know would do anything to have full residential rights of my child. Unfotunately he works in the legal profession and would make my life a misery. I am scared to leave because he told me that I would not keep my child.

    • Androus

      I noticed you said your child, the child is his too. Many fathers walk away from their marriage and their children, you should consider yourself lucky that your ex is not irresponsible to his chilsd

  • bosschick

    Looloo I have a similar ex-partner. I am pregnant with twins and he wanted an abortion. I refused to abort them. Now he says he will go for full custody and will make sure I never see them. He is very cunning and im worried that he will make my 7yr old daughter, the twins life and my life a misery. He has a history of mental illness and many factors will go against him. But im still scared

  • concerned

    my girlfriend has a history of self harming and gets angry quite alot when changing nappies etc. when shes angry she says she will leave and take our daughter with her she works and i stay home and look after the little one weaning her etc how can the law say i have less rights when it comes to custody.

    • http://www.saracenssolicitors.co.uk Saracens

      Dear Concerned,

      The law sets out clear guidelines on the factors that the court should take into account when determining custody. To explain further, there is no presumption in law that a child should be placed with their mother, however in many circumstances when couples separate, children are often left with the mother and the courts then maintain the ‘status quo’. I note that in your situation you stay at home and care for your daughter whilst your partner works, however you haven’t mentioned whether she works part time or full time. Also you mentioned that your daughter was weaning, is she still breast feeding? Is your girl friend’s self harming affecting her ability to take care of your daughter / keep her safe? These are all important factors that the courts would take into account when determining custody. The overriding principle however is whether it is in your daughters best interest to be placed with you or her mother. If I can assist further, do not hesitate to call or email me.

  • SaracensSolicitors

    Dear Concerned,

    The law sets out clear guidelines on the factors that the court
    should take into account when determining custody. To explain further,
    there is no presumption in law that a child should be placed with their mother,
    however in many circumstances when couples separate, children are often left
    with the mother and the courts then maintain the ‘status quo’. I note
    that in your situation you stay at home and care for your daughter whilst your
    partner works, however you haven’t mentioned whether she works part time or
    full time. Also you mentioned that your daughter was weaning, is she
    still breast feeding? Is your girl friend’s self harming affecting her ability
    to take care of your daughter / keep her safe? These are all important
    factors that the courts would take into account when determining custody.
    The overriding principle however is whether it is in your daughters
    best interest to be placed with you or her mother. If I can assist further, do
    not hesitate to call or email me.

  • arno

    I am a Dad who has recently seperated. From ages 2 to 5 (she is now 6) I was my daughters main carer as my partner worked full time and I took time off work or worked part time. Since separation I have been reduced to seeing her some weekends. I feel it would be much fairer if we could both share custody equally (we live near each other) but my ex-partner as the mother presumes to be in control and feels she will be the primary carer and I get visit at weekends. I don’t know where I stand legally on this issue.

    • Peter Smith

      dontgo for shared custody do your home work and go for sole custody then if you have to settle for joint custody its what I did and I didn’t use a solicitor after nine months of court I walked out with sole custody of my son it can be done

  • FED_UP!

    Hi

    My wife keep saying that she has had enough of the relationship and whats to leave. We have a little boy who is about to turn one in a few weeks. He is everything to me and I love him with all my heart. I don’t understand why she is feeling this way I do all I can to help her around the house and with the child. I do most of the cleaning around the house and do all the shopping, basically
    the only thing I’m not allowed to do is cook.

    I work full time and have a very good job that I enjoy, when I finish work I go home to spend time with my son, but everyday she argues with me and shouts at me for thing that I have no control over. I have done everything she asked of me, bought a place of are own because she used to fight with me when we rented, stopped talking to my parents because she dose not like them, gave up all my friends because she says they are a bad influence (I have no-one in my life but my son).

    She blames me for her step father not wanting to excepting our marriage she also blames me for her sister living apart from her. Her step father keeps saying to her to leave and take the child with her and that he would do everything he can to keep me away and she can start a new life.

    The thing is she is not meant to have any contact with her step father as her and her sister where put into care as her step mother used to abuse the sister and she was raped by her stepmothers nephew. Her father had told her to drop the case and tell the police that she was lying and as a result she was put into care.
    I don’t want my son to grow up in a environment like that. She has a case of self harming in the past and many times talks about killing herself. Her sister is the same she has cut herself on many occasions and has had to be taken to hospital. Still through everything I have supported her.

    When she was pregnant she ran off while we thought she was sleeping she talked about drowning herself. She even put her hands around my neck and tried to suffocate me. She had me arrested saying to he police I hit her soon after my son was born. I not a violent man never hurt or lifted my hand on anyone.

    She keeps saying that she wants to claim benefits by saying we are already separated and that if the benefits office ask I should just agree and say I sleep on the sofa. She wants to send that money to help her real mom and dad who she recently found out about.

    I feel that she bullies me and no longer has any feelings but because of my son she can say what she wants and I have to keep my mouth shut. I don’t have anyone in my life that I can talk to and most days I just feel like crying, I’ve spent that last 2 years being by her side through all her problem only ever spent 2 nights away due to work and I keep being told that she would leave.

    I’m no longer bothered if she goes but I don’t want her to take my son that only bit of happiness I have. What can I do???

  • paul

    My son is about to turn 12 and as asked to live with me the father,where do I stand with this and what is the law’s stance on this ,my son is not happy with living with his mother

  • Stu

    I’ve been divorced for 4 years, my ex wife had custody of our 2children and gained 70% of our assets when we divorced. She has now informed me that she is moving abroad and leaving the children behind for me to look after.
    I live in a 2 bedroom flat and work 60hours per week., I don’t know how I am supposed to continue to work bad bring up 2 teenage children in this environment. Can she just leave the country and out children?

    • SaracensSolicitors

      Dear Mr Stu, I am sorry to hear about your troubles…

      You will need to check the terms of the Court Order made in relation to the children and financial matters.

      If the children are still under the age of 16 and the Court Order states that the children are to reside with their mother, in simple terms, she must comply with the terms. If she can no longer do so, then she should apply to have the terms varied (i.e. at Court).

      Also, if the children are being left with you then you may also want to consider requesting child maintenance from your ex-wife.

      Do call me (Ms Naz) at the office if you wish to discuss further: +44 (0) 203 588 3527.

  • Peter Smith

    No mother or. Father should altermatical have full parental responability we live in the 21st century women want equal rights and men want equal family rights what needs to be concidered is who ismost able with the day to day stuff with the children who is more in tune. With the child emotional and physical needs who the child will achieve the most with acadenicaly these are but a few of the factors in relation to child custody to presume a mother has the god given right in today’s society is wrong and gender discrimination

  • Peter Smith

    Hi fed up what you describe is dv you need to report it so that if you desire not to continue with the relationship least it will put you better placed with child matters

 
The Law Society Excellence Awards 2013 Shortlisted logo

Connect with us

Blog Archive

Browse by Date:

See results


Request a call back






captcha
css.php