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We regularly deal with cases which have common factors where 1 parent approaches us seeking advice and representation about the potential of applying for sole custody. The common factors will typically some or all of the following :-
1. A young child primarily lives with one parent following separation under an informal agreement between parents;
2. The client is the primary carer that is responsible for managing the day-to-day care of the child;
3. The other parent has been having informal contact with the child but frequently cancels, arrives late or changes plans at short notice;
4. Maintenance payments are irregular and sometimes linked to contact disputes;
5. Communication has become reactive and strained - When arrangements are informal, communication between parents can quickly deteriorate. Messages may become accusatory or defensive, and minor issues may escalate unnecessarily. This leads to a breakdown in the co-parenting relationship;
6. The client seeks sole custody/ a live with Order in relation to the child, believing the inconsistency demonstrates instability for the child;
7. As a result of all of the above, the client wants to restrict the other’s parent’s parental responsibility; .
8. While there may be concerns as to unreliability, there are no safeguarding allegations that justify restricting the other parent’s involvement.
In situations where clients need advice on the legal viability and advisability of applying for sole custody, our approach is :-
To ensure clients understand the legal framework surrounding parental responsibility and the presumption of parental involvement - parents may be unaware that currently, the presumption of parental involvement applies so that unless the contrary can be proved, a parent’s involvement in a child’s life is likely to further child welfare.
Advise client on the risks of applying for sole custody - overreaching applications or disproportionate allegations can weaken a parent’s position and attract judicial criticism.
Assess the evidence in each client’s situation – notwithstanding that successfully applying to court for sole custody is difficult, there are some situations, especially where there is evidence of behaviour which is impacting the welfare of children.
Advise the client on a realistic outcome – with a recent client we advised that the best option would be to apply for a “Lives With” Order in their favour and structured contact arrangements with the non-resident parent. This would be less likely to exclude the other parent and address concerns of inconsistency. A “Lives With” Order would formalise existing arrangements and allow the resident parent to take the child abroad without the consent of the non-resident parent for up to 28 days.
Where sole custody is not realistic now, it might be in the future – for example, if the other parent continues with behaviour, having a court order which is clear, specific and detailed in terms of compliance required, backed up by a factual log of cancellations, late arrivals and any changes to arrangements is essential.
Make a reasonable proposal - we help clients propose to the other parent a reasonable, child focused proposal for contact in writing before issuing proceedings. This was with the aim to resolve matters by way of a child arrangements consent order, as opposed to contested proceedings. This demonstrates a willingness to facilitate contact and often strengthens the client’s position if the matter later goes before a judge.
Find a sensible way to communicate - where communication breaks down, we recommend parents communicate via parenting apps to control communication and provide a clear record of what is agreed.
Focusing issues around child welfare - avoiding inflammatory allegations wherever possible.
Pursuing sole parental responsibility without a clear safeguarding basis is rarely effective and can, in fact, be counter-productive. Where clients insist on taking this approach, several difficulties will often arisen:
Judicial criticism - for appearing to limit the other parent’s involvement or parental alienation
A real risk of the court expanding contact - Where the court perceives gatekeeping or an overly adversarial stance, and considers it would be in the child’s best interests to spend more time with the non-resident parent, then this can be ordered to restore balance. This can lead to an outcome further from what the client hoped to achieve.
Damage to the client’s credibility - overreaching applications can make it harder for the court to accept the client’s concerns at face value. This can distract from the genuine concerns that need to be addressed.
Increased hostility and unnecessary costs - a disproportionate application tends to escalate conflict, prolong proceedings and increase legal costs, without improving the child’s situation.
In one of our recent cases we obtained a final order which provided clarity around where the child would live, set out clear spending time with arrangements, and reduced opportunities for conflict.
Equally important, the order included a detailed and defined schedule of everything agreed and expected of both parents and that a parenting app would be used to improve communication and reduced the scope for misunderstandingsThis approach also placed the client in a stronger position should any future variation be required, as the court could see that they had acted reasonably and remained focused on the child’s welfare throughout.
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