Access Rights

Visitation or contact rights (previously known as access) are agreed or assigned as part of the divorce process. The couple is encouraged to come to a mutual agreement about residency and visitation in advance when filing for divorce. If they cannot agree a court officer can be appointed to help them or recommend a decision to the court.

Agreeing with Your Partner

Separation has a powerful effect on your children. Minimising disruption to their lives will be one of your main priorities if you and your partner have decided to separate. There are various options available to you depending on your situation.

If you and your partner have difficulty agreeing on residency and visitation, one of the first steps you should make is to see a mediator. Mediators provide a confidential and impartial setting in which to discuss all issues relating to your divorce. Usually after three to five sessions the couple will have agreed the terms of their separation and can then present a united front to the court.

Mediation does not result in a legally-binding contract. When you or your partner submit the divorce petition at court you will also include a Statement of Arrangements, detailing where the children will live and how often the other parent will see them. As a matter of good practise it is recommended that the petitioner show this statement to the other parent for agreement before handing it in.

What the Law Says

When a married couple separate, both mother and father have parental responsibility. If they are unmarried, only the mother has automatic rights in respect of the child, so if they break up, she has the sole right to look after her child in a manner and place as she sees fit. Under such circumstances the father has no automatic say regarding the future life of his children.

Since 2002, an unmarried father can acquire parental responsibility if he jointly registers the child’s birth with the mother. He can also get parental responsibility if both partners sign a Parental Responsibility Agreement. This can be done at any time and can also be ordered by a court.

Even if a father does not have parental responsibility, he is still equally responsible for the financial welfare of his children. He can be contacted by the Child Support Agency for financial support. If appropriate, deductions will be made to the amount of support the father has to pay depending on how often he sees his children.

The Court Process

One of the first things the court will do when you submit your petition is arrange a conciliation appointment to try and ensure both parents agree on the terms of residency, visitation and payments. If this does not result in agreement they will arrange for both parents to see a CAFCASS officer, from the Children and Family Court Advisory and Support Services.

If an agreement can still not be reached, the officer will take statements from both of you and make a recommendation to the court. It is important to co-operate with the CAFCASS officer as their recommendation is very influential to the court’s decision.

At the end of the court process either or both parties will be awarded a residency order. As part of the process the father may also be given parental responsibility, or one of the parents will receive a contact order giving them visitation rights. Courts encourage the parents to reach an agreement by themselves and will only make an order if all other options have been exhausted.

How a Court Decides

In the 1989 Children’s Act, it states that when the court makes any decision about a child, the child’s welfare must be the court’s ‘paramount consideration’. There is a list of key factors they take into account when making their decision:

• Your child’s wishes and feelings. These will be given more consideration the older the child is.
• Your child’s physical, emotional and educational needs. This covers both love & affection and food & housing.
• The likely effect of a change of circumstances on your child. Their greatest concern here will be causing minimum disturbance to the child.
• Your child’s age, sex and background. This could include cultural, religious or disability needs.
• If your child has suffered harm or is at risk of suffering harm. Recently, this also includes any domestic abuse the child has seen or heard.
• The parents’ capabilities with regard to the child’s needs. This can include assessing whether the non-resident parent is capable of caring for the child. Or whether either parent is impaired by drink or drugs.
• The range of powers available to the court. There are a range of orders a court can make. Sometimes they decide no order is necessary.