Parental Rights When You Separate or Divorce
Many people question what parental rights they have for their children when they are going through a separation or divorce. That’s understandable as many separations are not amicable and both parents want to know where they stand legally and what their parental rights are.
In this blog, our family law solicitors look at what is meant by parental rights and how to resolve conflicts over parental rights when you are separating or getting divorced.
Online and London Family Law Solicitors
For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
What are parental rights in the UK?
In law, most parents have what is referred to as parental responsibility for their children. However, not all parents automatically have parental responsibility. Some parents have to acquire parental responsibility by agreement or by court order. Other people or organisations have parental responsibility even though they are not the biological parent of the child.
As parental responsibility is a confusing concept it is best to understand what it means and to know if you have parental responsibility for the child you are looking after or having contact with.
Who has parental responsibility for a child?
You can be a parent with parental rights but not have parental responsibility under the law. Equally, you can have no biological relationship with a child but have parental responsibility for the child but no ‘parental rights’. The law sets out who has parental responsibility for a child.
Parental responsibility for mothers
The first question is whether you are the child’s biological mother or not. If you are a biological mother then you have automatic parental responsibility unless the child was born through a surrogacy agreement. In that case, under current UK law on surrogacy and parental responsibility, you only acquire parental responsibility for your biological child when a parental order is made by the family court.
A mother can only lose her parental responsibility for her child if the child is adopted. An adoption order extinguishes parental responsibility. Other types of children law order means that a mother shares her parental responsibility with others. For example, if a father has parental responsibility through being married to the child’s mother or through obtaining parental responsibility by agreement or court order. Alternatively, a mother may share parental responsibility with a local authority if the authority obtains a care order for the child.
If you are concerned about sharing parental responsibility or worried about how it will impact decision-making for your child then our family law solicitors can talk to you about parental responsibility orders and how shared parental responsibility works when one parent obtains a child arrangement order.
Parental responsibility for fathers
Parental responsibility for fathers is a bit more complicated than parental responsibility for mothers because not all fathers have it. However, if you want parental responsibility most fathers can get parental responsibility by agreement or court order.
A father has parental responsibility if:
- He was married or in a civil partnership with the child’s mother. Parental responsibility is not lost on separation or divorce
- He is an unmarried father and is named on the child’s birth certificate (provided the child was born after 1 December 2003)
- He gets parental responsibility by signing a parental responsibility agreement with the child’s mother (and anyone else with parental responsibility for the child)
- The court makes a parental responsibility order
- The court makes a child arrangement order in his favour as the law says that if a child arrangement order is made the person with care of the child under the court order has parental responsibility for the duration of the order
A father can only lose parental responsibility if an agreement is ended or if the court orders that he no longer has parental responsibility. The court is normally reluctant to end parental responsibility even if it orders that a father should have no ongoing direct contact with their child. For example, because of domestic violence in the relationship between the parents and the child is assessed to be at risk of harm from direct contact with their father.
If you are concerned about whether you hold parental responsibility or worried that you may lose your parental responsibility then our family law solicitors can answer your queries. For example, a father does not lose parental responsibility because they have chosen to not pay child support for their child or because they are living outside the UK.
Others who could have parental responsibility for your child
People in addition to the other parent could have parental responsibility for your child. For example, if a child arrangement order is made in favour of a grandparent or step-parent, the person named as the residential carer of the child in the court order has parental responsibility for the duration of the order.
If the child is made the subject of a care order in favour of a local authority the council will share parental responsibility with the child’s mother and also potentially with the child’s father and anyone else with parental responsibility. If a child is made the subject of a supervision order the local authority does not share parental responsibility for the child with the child’s parents.
If you are adopting a child then you will acquire parental responsibility for the child when the adoption order is made. The adoption order will distinguish the parental responsibility of the biological parents. A guardianship or child arrangement order does not do this.
Parental responsibility can get complicated when you have asked an extended family member to look after your child. For example, if you are returning overseas and want your child to stay in the UK or if you want to send your child to live in the UK to be cared for by an aunt or grandparent. Our family law solicitors can advise you on parental responsibility and parental rights as well as explain the various children law orders available to meet your family circumstances.
What does parental responsibility mean?
The Children Act 1989 defines parental responsibility as the right to make important decisions for the child and to have a say in how the child should be brought up and information about the child.
The extent of your rights will depend on whether you share parental responsibility with anyone else and whether any children law orders have been made that limit your parental rights. For example, the family court could make a specific issue order or prohibited steps order preventing you from receiving information about your child from the child’s school, from going to parents’ evenings, or stopping you from taking the child overseas without court permission even though a child arrangement order has been made in your favour.
Sharing parental rights and parental responsibility
If you share parental responsibility for your child with someone else then you may fall out with the other parent about important parenting decisions. For example, if your child should be vaccinated, attend sex education classes in school, wear a hijab, or should be privately or state educated.
If you cannot reach an agreement about how parental responsibility should be exercised, the court has the power to determine the disputed issue by making a specific issue order or prohibited steps order. The court will determine the disputed parenting issue by the judge deciding what they think is in the best interests of your child.
Worried about your parental rights or have questions about your parental responsibility
If you have questions about your rights as a parent or about parental responsibility our specialist family law solicitors can help answer your queries and explain whether you need to apply to the court for a parental responsibility order, child arrangement order, specific issue order, or prohibited steps order.
Online and London Family Law Solicitors
For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
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