Who will love my children?

By Shameela Ahmed

One of the most challenging aspects of any relationship breakdown is how do you minimise the impact of the breakdown upon your children. After all, they will be the ones bearing the force of this critical life decision.

In this article, I will also address the sad reality of children losing a parent/ parents and what steps can be taken to protect the care of your children after your death.

 

On Relationship break down

You may feel upset and confused by a breakdown, and it is easy to let anger or guilt get in the way. It may help to talk it through with someone who can be sympathetic and keep a clear head such as friends, family, or even a professional mediator/solicitor.

You will need to try and agree on the following points:

  1. When and where your children will visit.
  2. How the parent living apart can stay in touch in-between visits.
  3. How you will settle any disputes in the future to not affect your children.

Separation sadly doesn't always mean the end of arguments, and you may need help with settling disagreements from your breakdown. Once you can put your disagreements aside, you will be able to address more practical issues such as your children's routines and visits. You may need and benefit from some help to finish the argument and draw a line under your relationship as partners so that you can move on to being co-parents. It is important to remember that your children have the right and the need to see both their parents no matter how angry you might be with a parent (provided there are no safeguarding issues).

For your children's confidence and self-esteem, they need to see that both parents care for them. If it is the Father who has left home, and you were married, he would retain parental responsibility for your children. He may also have this if he is named as the Father on the birth certificate, so you could even be an unmarried couple. If the child's Father was given parental responsibility by the court, he does not lose it when you separate. Although you may not see it now, children continuing a relationship with both their parents has real benefits not only for the children but also for you to be able to share parenting responsibilities.

A solicitor can help you navigate these issues with clarity and provide you with guidance where required. Most importantly, they can help you resolve financial matters that sometimes impact how parties deal with children matters. Though they are separate issues, they can impact each other during a relationship breakdown. A good solicitor should advise you to be as non-confrontational as possible when it comes to children matters, but equally should be robust enough to litigate the matter if the children's best interests are not being served by the other party and/or no agreement can be reached.

 

On parent(s) passing away

There is another aspect to consider when you are a parent, and that is if you have children under the age of 18 (minor children) you should consider making a Will and include a guardianship clause in your Will.

This will provide you with peace of mind that people you know, and trust, will take care of your children should either, or both of you pass away and does not leave the appointment of a guardian up to the Court.

A guardian is a person appointed to look after the interests of the child who has all the legal responsibilities of a parent known as a parental responsibility. A guardian may be appointed by the Court during family proceedings or privately by an individual who has parental responsibility for the child.

The appointment can be made by Will (or another document provided it is in writing and signed by the parties) making the appointment. If there are no guardians appointed and a person dies leaving minor children, the court must appoint a guardian. Suppose the person making the Will (known as a testator) dies, and there is no other person surviving with parental responsibility. In that case, the guardianship appointment will take effect immediately on the testator's death.

If a testator dies and a Child Arrangements Order is in force (Court order dealing with children living /contact arrangements) in which the testator was named as a person with whom the child was to live, or the testator was the child's only special guardian then the appointment will take effect immediately on their death even if the surviving parent has parental responsibility. In this case, the guardian will share parental responsibility with the surviving parent.

The appointment would not take effect immediately if the surviving parent with parental responsibility was also named in the Child Arrangements Order as a person with whom the child is to live. If there is a dispute about who the child is to live with, the surviving parent or the guardian can apply for a Child Arrangements Order. A parent may also apply to have the guardianship terminated. 

The child's welfare is the Court's primary concern when dealing with these issues. Suppose the testator dies and the child has a surviving parent with parental responsibility, and there was no Child Arrangements Order in their favour. In that case, the guardian's appointment will not take effect until the surviving parent with parental responsibility has also died.

 

At Fletcher Day solicitors, we can advise you further in relation to these complex issues, so please do not hesitate to contact us for further information.

 

25 January, 2021
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