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3 Divorce and Separation
5. If you have children
The terms 'custody' and 'access' are no longer used officially or legally to describe which parent the child or children live with and how often the other parent sees them. The correct terms and concepts are explained in the next few paragraphs.
What is 'parental responsibility'?
When a child is born, the mother has parental responsibility. The father also does, but only if he is married to the mother at the time of the birth, or registered as the father on the baby's birth certificate (as long as the child was born after 1 December 2003). However, later in the child's life, the unmarried father of the child can get parental responsibility, by:
Both parents get parental responsibility if they adopt a child. Also, any other 'suitable person' can get parental responsibility if the court orders this.
You do not lose parental responsibility if you get divorced. You will carry on being your children's full legal parent, whether or not the children live with you.
How do we make arrangements for our children if we get divorced?
What if we can't agree?
If mediation is not suitable for you (a mediator can help you decide this), either of you can apply to the court for an order. You can do this whether or not you have already started divorce proceedings. You do not need a solicitor to act for you but it is probably a good idea to get some legal advice before you start.
The Court Service produces two helpful leaflets about court proceedings and children:
The leaflets are available from the Court Service website. (See 'Further help' for details).
The court, usually with the help of an officer from the Children and Family Court Advisory and Support Service (CAFCASS), will try to make sure that you and your husband or wife can come to an agreement. To find out more about CAFCASS, (See 'Further help' for details)
If you can't agree, the court will make an order. But the court will make an order only if it would be better for the child than not making one, and most cases involving children are usually settled by agreement at a reasonably early stage. This is generally better for everyone, and especially children, and it certainly saves a lot of legal costs.
If contact arrangements are causing problems, it may be helpful to use a Child Contact Centre as a neutral meeting place. Solicitors and courts will have details of your local centre. (See 'Further help' for details).
What if there are specific issues that we can't agree on?
Also, the court can make a 'prohibited steps order' to stop one parent doing something that the other parent disagrees with, such as changing the child's surname.
This leaflet is published by the Legal Services Commission (LSC). It was written in association with Imogen Clout, a solicitor specialising in family law.
Leaflet version: May 2019
CLS Legal Info Leaflets
(Legal Information Leaflets)