Anyone who has been through a divorce, or is currently going through a separation will know just how challenging this time can be on all who are involved.
However, knowing exactly where you stand in relation to your children can make this time slightly easier, particularly when it comes to the interim period between separation and divorce.
Whilst every couple prays for an amicable divorce, this isn’t always possible. Disputes over inanimate possessions such as your estate or possessions, whilst unpleasant, do not personally affect those objects.
However, when it comes to your children, this is not the case. Parents may agree that shared residence is preferable when the divorce is amicable, and both parents are willing and able to raise the child or children to the best of their ability.
However, when one parent believes that the other is unfit to carry out their duties effectively, a battle can begin as to who the children will live with.
What do we mean by Parental Responsibility?
Before we look at the issues contained within child custody, we should first look at what we mean by ‘parental responsibility’.
The Children Act 1989 defines parental responsibility as possessing ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’, including the rights and powers over the child’s estate.
For a parent to even consider partaking in a battle for custody, they must understand what is expected of them and what the court will consider them responsible for should they gain sole custody of that child.
First and foremost, when it comes to any question about your children’s upbringing, their welfare is of paramount importance to the court.
In Article 2(1) of the Children (Jersey) Law 2002, states that ‘when a court determines any question with respect of the upbringing of a child […] the child’s welfare shall be the court’s paramount consideration’. This highlights the court’s overriding desire to protect the child’s welfare above all else.
Before you consider fighting your spouse in court, consider the welfare of your child and what is best for them, as this will influence the judge’s decision.
Considerations Regarding the Child’s Welfare
Determining what is best for the child is not always an easy task. There are a number of ways that a judge can make this decision, and there are multiple clauses within section 1 of the Children Act 1989 that assist a judge in making this call.
The court will not only consider the welfare of the child, but also the following issues:
- The ascertainable wishes and feeling of the child concerned (taking into account his or her age and understanding)
- The child’s physical, emotional and educational needs
- Any harm which the child has suffered or is at risk of suffering
- The ability of each parent to meet their child’s needs
Marriage of the Child’s Parents
In regard to the marriage of the mother and father of the child/children in question, the law clearly states that when a child’s father and mother were married to one another at the time of the child’s birth ‘they shall each have parental responsibility for the child’.
Whilst this responsibility may not automatically relate to sole custody, it does relate to at least a degree of obligation for the child’s welfare in one aspect or another; this could relate directly to financial aspects of the child’s upbringing, emotional support or matters relating to the child’s estate.
This means that if you go to court and do not secure sole custody of your child, you may still be required to support that child in other ways.
Every divorce and/or custody battle is unique, and each one can be extremely challenging for all involved. However, if you and your partner can agree to the terms of your divorce without the assistance of a court, this procedure can occur relatively quickly and easy.
Regardless of how the procedure plays out, never forget the importance of the welfare of your children, and remember to always place their needs over and above any other aspect of the divorce.
Author Bio: Carl Parslow is the managing partner of Parslows’ Jersey office and he has 20 years of experience practicing law.
Carl was initially called to the English Bar in 1996 and in 2003 he was called to the Jersey Bar as an advocate. If you require any additional legal information regarding divorce and you’re based in the Channel Islands, get in touch with Jersey lawyers at Parslows, via their website or by phone at 01534 630530.