There are certain questions that we as lawyers often get asked at the outset of a family matter. This is understandable as it will be a situation that hopefully has not been experienced before and the situation may well be unusual, and the surrounding circumstances are often very emotional.
To assist with understanding some basic legal principles we have provided some useful guidance to cover some of the initial issues which we commonly get asked.
Child maintenance
What is child maintenance?
Child maintenance is a regular sum of money paid by a parent to the parent with whom a child usually lives and/or spends the majority of their time. Its purpose is to assist with the financial upkeep costs of a child (food, toiletries, day-to-day living).
How is child maintenance calculated?
In the UK, child maintenance is based on a percentage of a paying parent’s income. This is calculated by the Child Maintenance Service (formerly known as the Child Support Agency), which has an online calculator to assist parents with establishing the amount of child maintenance that should be paid.
In Jersey, a more subjective approach is taken, in that whilst the Child Maintenance Service calculator can be used as a cross-check, this is only a guiding factor and is not a strict, binding formula. The Court in Jersey will look at both parent’s income and expenditure and take into account the needs of the child before deciding what a fair amount of child maintenance may be.
What is child maintenance supposed to cover?
A child’s needs include direct expenses such as food and clothes, but also include a proportion of the parents’ housing and living costs.
Often parents agree an additional amount on top for incidental expenses (including school costs, school trips, medical costs, after school and holiday clubs.).
What happens if child maintenance is not paid?
This depends on the agreement the parties have in place. If no agreement or no formal agreement i.e. a Court Order is in place, then a party can apply to the Family Court for a child maintenance Order to be made.
If a Court Order is in place already, then a non-paying parent can be pursued via the Petty Debts Court to enforce the Order via the Viscount’s Department.
Can I claim any arrears?
If an existing Court Order is in place, arrears may be claimed via the Petty Debts Court. It should be remembered however that affordability is taken into account – it can be hard to enforce a payment if someone has no money with which to pay it.
If no Court Order is in place, the Family Court may award arrears back to the date when an application is first made.
If my circumstances change and I can’t afford the maintenance payments, what should I do?
If child maintenance has been agreed, but a party cannot afford the payments, they should ideally raise this with their ex-partner as soon as possible to discuss matters and establish a way forward for affordable payments to be made. If this cannot be agreed, the parties should explore dispute resolution methods such as mediation or Family Foundation to resolve the situation.
If an existing Court Order is in place and an agreement to change the payments cannot be reached, the paying party should apply to the Court as soon as possible to vary the existing child maintenance Order based on a change of circumstances.
Child arrangements
What is custody?
The term Custody has been replaced by Residence. A residence order confirms where a child predominantly lives. Courts can make either a residence order for a child to reside with one parent, or a shared residence order when a child spends time (including regular, weekly overnight stays) with both parents.
How does a parent get full custody?
This is a question which we are often asked, but to which there is no straight forward answer and depends on what a parent sees as full custody.
The Court’s view is that a child’s welfare is paramount and, where possible, it is in a child’s best interests to have a relationship with both of their parents. This may mean that shared residence rather than ‘full custody’ is the Order a Court may make. This depends on whether there are welfare grounds that mean shared residence is not in a child’s best interest or practical grounds such as the availability of one parent if they have particular unavoidable work commitments.
The Court will often make a residence order and a contact order, so a child lives with one parent and has regular contact with the other, or, a shared residence order, reflecting an arrangement where both parents have an equal role in the care for a child.
Which of these outcomes occurs however will significantly depend on each family’s individual situation.
How can a mother/father get full custody?
Again, there is no easy answer to this question as it depends on the unique situation of a child.
It can often be damaging for a child to see parents battling with each other in competition for residence of a child. Rather than focusing on undermining the other parent to try and ‘win’ custody, the most child focussed approach is for parents to try and work collaboratively in the best interests of a child.
Whilst this may be far easier said than done, this approach can lead to a significant improvement in co-parenting relationships and will be better for a child as opposed to seeing constant arguments between parents.
At what age can a mother/father get 50/50 custody?
The simple answer is “any age”. However, again it would depend on the situation of a child’s parents and the child.
The older a child gets, the more their wishes and feelings will be taken into account by the Court when deciding what kind of arrangement would be in the child’s best interests.
Parental Responsibility
What is Parental Responsibility?
Parental Responsibility (or “PR”) is the right enshrined in Law for a parent/guardian to have a say in all the major decisions that can affect a child’s life, such as where they live, where they go to school, medical decisions and any religion that a child should be raised under.
How do I get Parental Responsibility?
A mother is automatically granted PR for a child upon its birth.
Following a change to the Law in 2016, for children born after December 2016 the father is automatically granted PR if he is named on the child’s birth certificate.
For children born before 2016, or for circumstances where a child was born after 2016 but their father is not named on the child’s birth certificate, Parental Responsibility can be obtained by the parents filing a Parental Responsibility Agreement with the Family Court. If a mother does not agree to a father having PR for a child, an application for a Parental Responsibility Order can be made to the Family Court.
If someone is not a biological parent for a child but the child lives with them under a residence order made by the Court, they automatically gain PR for the child.
What does the Court consider in granting a PR Order?
In establishing if a father should be granted a PR Order, the Court will look at, amongst others, the father’s existing relationship and commitment to the child and the reasons the application is being made.
How do I get PR removed from a parent?
It is a very draconian step to remove parental rights from a parent. It is rare for the Court to remove PR from a parent.
Both I and my ex-partner have PR, does that mean we have to work together?
Yes. Usually everyone who holds PR for a child will have to agree matters. Whilst sometimes a practical consideration can be given if one parent has the vast majority of the care for a child, for bigger decisions, for example schools, you must not act unless you have confirmation from everyone who holds PR for a child that something is agreed.
Learn more about our Family Law Services to see how we can help.