Divorce & Parental Rights: What You Need to Know

If you are considering or going through a divorce, you may be concerned about your parental rights, particularly your rights to see your child.

In this guide, we outline the key things you need to know about your parental rights, particularly if you have separated from your child’s other parent.

If you need advice or representation on any Children Law matters, click below for a free initial consultation with one of our expert Children solicitors.

BOOK CONSULTATION

What is parental responsibility?

Parental responsibility means that you are responsible for the care and wellbeing of a child. Birth mothers automatically have parental responsibility, and this can only be removed if the child is adopted or a Parent Order is made to transfer legal parenthood, such as in the case of surrogacy.

Fathers will have parental responsibility if they:

• Were married to the mother at the time of the birth
• Are named on the birth certificate
• Have a parental responsibility agreement with the child’s mother
• Have a child arrangements order stating that the child ‘lives with’ them
• Have a parental responsibility order

Having parental responsibility also means that you should be involved in the important decision-making concerning the child’s upbringing. This includes decisions regarding the child’s:

• Name (including surname)
• Education
• Living arrangements
• Medical treatment
• Religious upbringing
• Holidays abroad

In terms of day-to-day decisions, a parent may make decisions concerning the child without approval. However, there may be some decisions where it is best to come to an agreement beforehand for the sake of avoiding unnecessary tension or conflict, even if there is no legal requirement to do so.

Rights to see your child

Parents do not have an automatic right to see their child, but the child has a right to see and have a relationship with both parents.

Mothers and fathers have equal rights, and unless proven otherwise, there is a presumption that contact with both parents is in the child’s best interests.

It is the child’s best interests which is the court’s main concern, and this is the key consideration for the court when making any decision concerning them. To determine what is in their best interests, the court will consider the ‘welfare checklist’:

1. The child’s wishes and feelings (considered in light of their age and understanding)
2. The child’s physical, emotional and educational needs
3. The effect on the child of any change in circumstances
4. The child’s age, sex, background and relevant characteristics
5. Any harm the child has suffered or is at risk of suffering
6. The capability of the child’s parents, and any other relevant persons, in meeting their needs
7. The powers available to the court

Can my ex stop me from seeing our child?

In short, not without a court order. Furthermore, a court will only make an order limiting or stopping contact between a parent and child if they believe it is in the child’s best interests to do so – typically if there are legitimate welfare concerns.

If your former partner is unjustifiably preventing contact between you and your child, you can seek a child arrangements order from the court to legally formalise the time you should be spending with your child. If they still attempt to deny or limit contact, with a child arrangements order in place, you can seek enforcement from the court.