Parenting After Divorce Or Separation – Is Shared Residence The Answer?
It is a sad fact of life that not all relationships last the course. The resultant negotiations to disentangle the lives of two adults can be painful and embittered and is particularly difficult when children are involved.
After divorce or separation, how should children divide their time between their parents? If the children live primarily with one parent, how much time should they spend with the other? The labels “residence” and “contact” have strong emotional connotations and can cause resentment in parents who, perhaps against their wishes, find themselves in the position of the “contact” parent. Increasingly, parents are seeking shared residence when the children’s time is divided equally between them. But is this the best solution for the children?
It is important to look at this question from two distinct viewpoints, legal and practical.
The legal position
Legally, issues such as residence and contact are governed by the Children Act 1989 which provides that the welfare of the children is the paramount consideration. Over time views as to what is in the best interests of the children have changed. The traditional view was that children need the stability of a single home and shared residence orders were made by the Court only where the circumstances were exceptional and where there was a positive benefit to the children. In recent years the Courts have been prepared to make shared residence orders more often and have shown a much more flexible approach. The current legal position can be summarised as follows:
- Each case has to be looked at carefully and will be decided on its individual facts.
- A shared residence order has to be shown to be in the best interests of the children (not the best interests of the parents). The wishes and feelings of the children are particularly important.
- There does not have to be a 50/50 sharing of time. For example the division of time could be 60/40, 70/30 or some other combination
- There does not have to be a harmonious relationship between the parents. Indeed, if there is, then there will be no need for the legal system to intervene at all.
- Geographical distance between the respective homes of the parents is no longer a bar, and shared residence orders have been made when parents live at opposite ends of the country or even in different countries.
- A shared residence order will be made to reflect the practical reality of the arrangements for the children. It will not normally be made simply to confer status on a parent, except perhaps when one parent has consistently sought to marginalise the other, or where the status of parental responsibility is important and cannot be achieved in any other way (for example in respect of a step-parent who has had a significant role in the children’s lives).
In summary, shared residence orders are no longer considered unusual, but neither are they routine. They will only be made after careful consideration of the facts of each individual case, and if they can be shown to promote the best interests of the children.
Practical considerations
Most parents manage to agree their arrangements for co-parenting and, if they do, the legal system will not interfere. An arrangement for equal sharing can look superficially fair to both parents and children. However it is not a “magic solution” to a difficult problem and can impose a long term emotional burden on children who have to sustain what is, in effect, a dual existence. It is important in all cases, whether or not the courts are involved, to consider the arrangements in depth from a child focussed perspective. For example:
- How frequently will the children have to change houses, and will they be able to cope, particularly if the parents do not live close to each other? How can the parents minimise the effect on the children’s after school activities, hobbies, friendships and so on?
- How is flexibility to be achieved? The children’s needs will change over time and arrangements suitable for primary school children may not be appropriate for older children who have started to develop their own lives. If there are children of different ages and genders, they may benefit from quality time alone with each parent in addition to moving between homes in a sibling group, if this can be arranged. There will also need to be flexibility for special events so that children do not miss out on important occasions.
- Will the children have time simply to “hang out”? Will they feel truly at home in each house, particularly if there are other children who live there or visit regularly?
- Where will the children’s important possessions be located? (Clothes, bikes, computers etc) Will they travel backwards and forwards or will there be duplicate sets?
- What will be the arrangements for “handovers” to ensure smooth transition between homes?
In summary, children will benefit if their needs are prioritised, where they are listened to and where the parents are able to be flexible about the arrangements.
Moving towards solutions
It is parental conflict, rather than the fact of separation or divorce, that has the greater potential to harm children. Thus, it is essential that parents put their own differences aside and focus on the perspectives of the children. This can be difficult to do when the parents themselves are going through a period of considerable emotional turmoil, and many families can benefit from specialist professional help in arriving at arrangements that will work for them.
Specialist family solicitors who are members of Resolution (www.resolution.org.uk) are committed to a child-centred approach and to resolving matters in a constructive and non-confrontational way, wherever possible by sensible round table discussions. Where necessary, they will work with other professionals such as counsellors and family therapists, mediators and, as a last resort, with the courts, to achieve the best result for their clients and above all for the children. Parents will be advised of all the options available to them, including mediation and collaborative law which, in appropriate cases, can be particularly beneficial. Parenting is for life and, looking to the long term, if a channel of communication can be established parents will be better able to resolve future issues that may arise.
Lynn Henderson is Head of Family Department at Callaghans Solicitors in Farnham. For further information call 01252 723477 or email lhenderson@callaghans.co.uk or visit www.callaghans.co.uk. [Callaghans offer a free initial interview in all family law matters.]
