Access Disputes – how to settle your differences without going to court
  • 5th Apr 2018
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Whether you are married, in a civil partnership or just living together, splitting up can be an emotional time. If there are children involved, the feelings of hurt and anger can be magnified. However, this is the time when your children need you to be at your most level-headed. With Legal Aid now only offered in a handful of cases, more couples are trying to resolve their differences without going to court. While it may not be possible in every case, settling issues such as access to children without appearing in front of a court can be the best way to re-start your separate lives, while maintaining as close to a family unit as you can.

Who has Parental Responsibility?

You may need to know one or two points of law before you begin discussions. If you’re coming out of a marriage, it’s important to remember that both parents have Parental Responsibility, if you were married at the time of the child’s birth. If you weren’t, Parental Responsibility is automatically given to the mother. However, unmarried fathers who registered or re-registered their name on their child’s birth certificate after 1st December 2003 will also have Parental Responsibility for their child.

If the child was born before 1st December 2013 and is using the unmarried father’s name, but the father is not named on the birth certificate, the father will not have automatic Parental Responsibility (unless this has been obtained by other means).

Parents can agree to share Parental Responsibility at any time during their relationship or separation by signing a Parental Responsibility Agreement.

Agreeing on What to Discuss

Before you consider discussing who’s going to live where with the children, it’s advisable to talk with the other parent in a calm and reasonable manner. At this point, it should be remembered that whatever is decided must be for the benefit of the children, both in the short and long term. There will be several points to consider, including:

• With whom the children will live

• How you will ensure that the children have reasonable access to both parents

• Who will see the children on which days

• How holidays will be divided

• How the children will get to school and friends’ houses.

Making a Plan and Sticking to it

Not all parents are able to communicate in a calm and rational manner, especially if the separation has been acrimonious. Often the emotional impact of a separation can make face-to-face communication next to impossible. However, there are still options available, including text messages, emails, phone calls and even asking a mutual friend or family member to act as a go-between, until the relationship is in a better state.

In the event that agreements can be reached, parents might want to record their decisions in the form of a Parenting Plan. While not legally enforceable, a Parenting Plan can be a good tool to help both parties adhere to what they initially agreed. The plan can be augmented in the future, should the need arise.

The plan can be turned into a legally-binding document, if you use the services of a Family Law solicitor. Making the plan legal can be an excellent way to protect the interests of everyone involved – particularly the children.

Mediation

If sitting and talking with the other parent is more destructive than constructive, you might want to consider using a mediator to resolve any issues you have. Mediators are not qualified to offer legal advice; they are there to encourage an environment in which both parents have the opportunity to raise their concerns, safely and without the stress of appearing in front of a court. Mediation is often advisable, as many courts require evidence that a couple have been to mediation before they will grant a divorce.

The break-up of a family unit is stressful for everyone involved, but for the children most of all. If you can agree on issues such as access without going to court, you may find this sets the standards for communication in the years to come.

If you would like any further infomation or advice then please contact a member of the family team.