My partner and I are splitting up and we have kids- where do I stand?

For many separating couples with children, the real worry is the children. Who will they live with? When will they spend time with both parents? Who will make decisions for them? Will I be phased out?

There is no automatic presumption in favour of either parent as far as the law is concerned when it comes to the children. When the court is called upon to make decisions regarding the children the paramount consideration is what is in the best interests of the children? 

In 2014, the law went a step further and now there is an established presumption that the involvement of both parents in a child’s life is in the best interests of the child unless there is evidence to the contrary.

There can be complications which arise when settling disputes about the upbringing of the children if there is a difference in the legal status of the parents and this is where the concept of parental responsibility becomes relevant.

If you have parental responsibility, you are responsible for making important decisions in the children’s lives. This includes decisions about how the children are to be educated or any medical care they receive as a few examples. Parental responsibility also allows you to make day-to-day decisions concerning the children such as their nutrition, recreation and outings. The duties involved for those with parental responsibility will change from time to time given the differing needs, circumstances and as the children become older and in line with their level of maturity.

How do you know if you have parental responsibility? 

The biological mother will always have parental responsibility.

This is where the position differs for married and unmarried couples…. A father who is married to the biological mother either at the time of the birth or afterwards will also have parental responsibility for a child. An unmarried father will only have parental responsibility if:
1) They are named on the birth certificate with the mother’s consent (after 1st December 2003)

2) There is a Child Arrangements Order in relation to the children

3) There is a court order granting the unmarried father with parental responsibility

4) They have entered into a formal Parental Responsibility Agreement with the mother

5) By being appointed as a guardian either by the mother or by the court, although in these cases it will only occur on the mother’s death.

If you do not have parental responsibility then you can apply to the court for it if your ex-partner will not agree to a Parental Responsibility Agreement.

There are any number differences of opinion which can come up when you are bringing up children together and those differences do not fall away if your relationship breaks down. Where such differences arise, there are a variety of ways in which a dispute can be resolved. Taking the dispute to court is the last resort. If the court is called upon to make an order relating to a child then the decision will be in light of what is in the best interests of the child.

If you have separated from your partner and you feel anxious about maintaining your relationship with your children going forward, then get in touch with our family team for some expert advice on 0118 9774045.

Sarah Speed
Partner, Head of Family
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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