What rights does the father have during divorce?

Kerry Smith

Kerry Smith
Head of Family Law
at K J Smith

This may come as something of a shock, but neither parent has any rights over their child. The child has rights over their parents, and this includes the right to see both, one or neither of them. In the real world, the default assumption is that the child benefits from having reasonable access to both parents. The term “reasonable” however, has to be defined on a case-by-case basis

Parental agreements and contact orders

There are basically only two ways the terms of “reasonable contact” can be agreed. Firstly, the parents can agree it between themselves. Secondly, a court can issue a contact order. Even in the latter case, there will generally be some leeway for parents to work out the details themselves. This is to allow for the fact that “life happens”.

Fathers should, however, be aware that a court will only issue a contact order if it thinks it’s in the best interests of the child. The potential stumbling block here is the need to maintain the child’s safety and welfare during the contact.

For example, if a father is living in an HMO (sharehouse), the court might have concerns about the child coming into contact with the other residents. There might, however, be ways around this such as meeting the child in their own home.

The overall consideration of the child’s welfare

Modern courts most certainly recognize that, in general, children benefit from time with their father. On the other hand, courts also recognize that fathers are not the be-all and end-all of a child’s life. Other considerations may include the child’s age, where the parents live, the need for contact with other family and friends and the child’s schooling and extra-curricular activities.

These will all impact the practicalities of fathers seeing their children. For example, if parents live a long way away from each other, courts may be very reluctant to allow children to visit the father’s home during the week, at least during term-time. School will come first. Even outside of term-time, courts may hesitate to have children regularly travelling long distances.

Again, there can be ways to work around this. For example, fathers can maintain contact with their children through video-calling (or regular calling). This may not be ideal, but it can be a whole lot better than nothing. What’s more, COVID19 has shown that a bit of thought (and some creativity) can make video-meetings almost as good as real ones.

The rules and etiquette of post-divorce parenting

You have the right to spend time with your child without infringement and without the other parent exercising control over you or the child (either directly or indirectly). You also have the right to be consulted on major decisions such as where your child goes to school.

Be aware, however, that this right is contextual. For example, if a decision needs to be taken in a hurry, the other parent may act alone. Where possible, they should consider what they know of your views. As always, however, the child’s welfare is the guiding consideration.

You do not have the right to take the child out of the UK without written permission from the mother. You do have the right to free speech so, in principle, you can say what you like about the child’s mother. In practice, this is one right it’s generally better not to exercise.

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About Kerry Smith

Kerry Smith is the Head of Family Law at K J Smith Solicitors. K J Smith Solicitors are experienced family solicitors in the Thames Valley area specialising in family mediation, estate planning and divorce and separation.

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