When parents separate they obviously have to make arrangements as to how much time their children spend with each of them. Hopefully, they will be able to agree arrangements, but in order to do so they need to know how the law approaches the matter.
Parents often have preconceptions as to how the law works, or should work. One major issue can be the idea that a parent is ‘entitled’ to have their children spend half of their time with them. But is this true?
The idea that there is, or at least should be, an entitlement to what has become known as ‘equal shared parenting’ has been around for many years, and can often be found in family law-related discussions, online and elsewhere.
Until 2014 the law, at least statute law made by parliament, did not really say anything about what might be called the ‘rights’ of parents in relation to their children. But in that year the Children Act, which sets out the law on deciding disputes over arrangements for children, had a significant amendment.
Presumption of parental involvement
The amendment was made in response to calls for the law to include a presumption that children should spend equal time with each parent. However, the amendment, as finally enacted, stopped well short of such a presumption.
What the amendment says is that when the court is considering whether to make an order relating to child arrangements it should presume, unless the contrary is shown, that involvement of both parentsin the life of the child concerned will further the child’s welfare. ‘Involvement’ means involvement of some kind, either direct or indirect, but specifically does not mean any particular division of a child’s time.
In other words, the amendment is a presumption of parental involvement, not a shared parenting presumption.
In short, there is no equal shared parenting presumption. The law does not say that a parent is entitled to have their children spend half of their time with them. It merely says that the involvement of both parents in the life of the child is usually expected to be a good thing.
But that is not to say that equal shared parenting does not happen. On the contrary, it is a very common arrangement. However, if such an arrangement is ordered by the court, it will be because the court believes that it is best for the welfare of the child, not because of any shared parenting presumption.
So the child’s welfare is more important than the parent’s ‘rights’. What is best for their welfare depends upon a number of factors, including the ascertainable wishes of the child, the child’s needs, the likely effect on the child of any change in their circumstances, and how capable each parent is of meeting the child’s needs.
But there are also practical considerations to take into account.
Quite often when parents with modest means separate they are not able to both obtain suitable accommodation for their children, in particular with appropriate sleeping arrangements. And the more children they have, the more difficult it may be to both have suitable accommodation.
Another practical problem may arise from the parent’s work commitments. If these mean that they are simply not available to look after the children when necessary then an equal shared care arrangement may not be appropriate.
But if there aren’t any such practical difficulties, and if there are no factors indicating that the child’s welfare will be best served by spending most of their time with one parent, then an equal shared care arrangement may well be appropriate.