Children issues arising on divorce.
A tricky question, but they have to
sleep somewhere. You don't need to get legal about this if it's agreed which
parent they will live with, and the arrangements for them to see the other
parent.
In former times, there would always be a order for custody and an order for access on
a divorce where children were involved. These days, we don't do custody or access; we have
residence, contact and parental responsibility which more or less do the same
job.
But the Court won't make any order for anything unless there's a good
reason to do so: you're supposed to sort children issues out yourselves in a
grown-up fashion. But if you can't, well, we're here to wind everyone up..sort
things out, that is.
Is a solicitor necessary for this? Well, we are
better at winding everyone up than most people... As for whether you need a
solicitor to handle the legal proceedings, the answer is: probably not in the
initial stages of legal proceedings, but if it's clear that the matter is going
to end up in full-blown trial hearing, then you need to consider getting legal
representation at least for the trial hearing. And it'd be worth getting advice
on the sort of evidence that you should be obtaining in support of your case
well before any trial. Again, you don't necessarily need to have a solicitor
involved from Day 1. Some people prefer to deal with the case themselves and
"buy-in" professional advice as required during the
proceedings.
There isn't an awful lot of law or procedure in children cases. Perhaps that's a bit of an over-simplification. The bottom line is usually: what is in the child's best interests? Children cases are rarely about which parent's "legal rights" have been infringed, nor which parent is the nicer or better person. The whole process is child-centred rather than parent-oriented.
In disputed contact cases, for example, the Court frowns on a parent complaining that his/her "right" to contact with a child is being interfered with: contact is said to be the right of the child to enjoy a relationship with both parents. Courts often adopt a fairly touchy-feely approach to disputes. That can be frustrating to the parties, but the point is that both parents will have to reach some sort of long-term working relationship over disputed issues, long after the court case has ended, if the arrangement is going to work in the child's interests. That approach tends to discourage the mentality of winning and losing which is the rule in other kinds of civil dispute, for example in cases concerning breach of a contract of employment or a complaint about faulty goods.
The role of a family solicitor in cases of this nature can often be more to massage the party's expectations about what is realistic, and how to present the case to achieve a realistic aim, than to deliver the knock-out blow to the opponent's case in devastating cross-examination which proves that the opponent is in error or dishonest or untrustworthy: the Court may agree that the opponent is all of these things but still hold that it's in the child's interests to go with the opponent's position.
One effect of all this is that court proceedings in themselves are rarely therapeutic for the parties. It's all a bit unsatisfying for the party who feels they've been wronged and wants to be vindicated on their day in Court. That just ain't going to happen. Or it's pretty rare anyway. Family judges these days are on the whole civilised and thoughful souls who keep their feelings to themslves and exercise their judicial discretion reasonably and carefully. Sad to say, but if it's therapy you seek then your money is probably better spent on a long and expensive holiday than on us.
Final point before you instruct a solicitor. Consider mediation .
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