In this article Cara Nuttall looks at the options available to parents who may be worried about their child spending time with their other parent, or the way in which that parent is exercising their parental responsibility.
There had been reports recently that Mariah Carey could be poised to file for sole custody of the twins she has with Nick Cannon, due to concerns about his level of involvement, as he divides his time between his growing family of 12 children.
It is easy to read short press reports and make assumptions about how the law operates in any given circumstances. It is important to remember that each case is fact specific, and the law differs significantly depending on where the dispute takes place.
When the couple divorced in 2016, they were reported to have agreed shared custody of their children, twins, Monroe and Moroccan. Since their separation in 2014 and subsequent divorce in 2016, Nick Cannon has had ten further children.
Whilst the specific details of care and custody arrangements for any of the children are unknown, the recent reports suggest he now spends limited time with the twins, meaning that Mariah considers a ‘sole custody’ arrangement may be more appropriate.
We often get asked by clients if they can apply for ‘sole custody’ because of the fact their ex-partner sees the children a lesser amount or plays a less active role in their upbringing. The answer is that in England, that’s not how the law works.
No such thing as custody
In England and Wales ‘custody’ was abolished many years ago, and was replaced with parental responsibility and what are now known as child arrangements (what people still often think of as residence and contact, is now ‘lives with’ and ‘spends time with’).
Parental Responsibility (PR) is about the right to be involved in decisions about the child’s upbringing, and to have information about the child. Child Arrangements deal with who cares for the child, and when.
Unlike in many countries, the two concepts are separate – you can have PR without looking after or seeing the children, and you may spend time with them, but not have PR, though usually people will have both.
The most important thing to understand is that they are free standing, so even if the children live with one parent and spend much longer in their care, that parent does not have greater powers than the parent they do not see as much.
What are the options?
In England and Wales, you can have a sole ‘lives with’ order, stating the child lives with that parent or a shared lives with order, which states the child lives with both parents, separately, in accordance with an agreed or specified division.
If both parents have parental responsibility, they will still hold that jointly, and equally, regardless of whether the arrangements are expressed as a sole, or shared lives with, order – neither will have more or less ‘power’ or control.
In terms of decision-making and the right to receive information about a child, once a parent has parental responsibility, they are equal to anyone else with PR, unless specific orders are made that change that.
It is rare for those orders to be made and as such, what many people think of as “sole custody” i.e. the children living with one parent, and that parent having all or the majority of the decision-making power, is not something that is common in English law in the way it is in some countries.
What can I do if I need sole ‘custody’?
There are circumstances in which the court can restrict a parent’s use of parental responsibility and in some very limited circumstances it can be removed.
In other circumstances, the court can adjudicate on a specific issue in dispute. The court can also significantly restrict the amount of time a child spends with a parent if there is good reason, or to impose conditions on that contact, such as supervision.
Whether the court will make such orders will depend on the specific circumstances of the case, and it will be necessary to show how or why the restrictions requested are needed to protect or promote the child’s best interests.
It’s important to note that a parent not spending a significant amount of time with a child, or having a busy lifestyle that impacts on their day-to-day availability will rarely be considered grounds to restrict their PR, but of course no two cases are the same, and much will depend on the specific family and the specific circumstances.
If you are worried about your child spending time with their other parent, or the way in which that parent is exercising their parental responsibility, it may well be possible for protective orders to be made.
The solution is not ‘sole custody’ and an experienced solicitor will be able to explain all the options available and which is likely to be most appropriate in your specific circumstances.
