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  1. Law
January 27, 2016updated 02 Feb 2016 11:43am

Custody battles are fought between undivorced couples too

By Spear's

Laura Rosefield says courts are not third parents to separated couples who block each other out from their children

Custody battles are fought between undivorced couples too

When high profile celebrities such as Madonna and Guy Ritchie have to go back to court over seven years after their divorce, fighting over custody of their 15 year old son Rocco, it hits the headlines. Yet I have several clients who still call on my help in resolving issues over their children even after seven years of separation.

The emotional strain of divorce, particularly when children are involved, can be overwhelming. I’ve assisted on a case where the care of a 10 month old baby was being decided and many cases where a judge had to decide whether one parent could take the children to live in a different country from their other parent, often thousands of miles away. International cases like Rocco’s, require not only expert legal knowledge and experience, but also a careful and sensitive strategy and a deep understanding of the emotional and psychological issues operating in the family.

Although it can be difficult and painful after a bitter separation, it is crucial for parents to accept and support the child’s relationship with them. The courts are keen to emphasise this and success in international relocation cases usually requires the moving parent to show that they place a great deal of importance on facilitating the child’s relationship with the parent left behind, whether by phone calls, Skype or long visits over the holidays.

I was involved in a case recently in which a mother had prevented her young son from spending any time with his father overnight. When she then applied to take the boy to live with her in another jurisdiction, she failed to persuade the court that she had a genuine intention to support the boy’s relationship with his father. The judge not only denied her application but he also ordered that the boy split his time equally between both parents. Quoting my client’s barrister, the judge highlighted: ‘You can’t hug Skype’.

As children get older, the courts may increasingly take their wishes and feelings into consideration. Last year, the Ministry of Justice commissioned the Voice of the Child report which made 34 recommendations based on the right of the child to be listened to when decisions are taken which concern them.

For parents at the outset of the separation process, it’s important to remember that courts do not become involved in children’s matters as a matter of course and it is always better to try to agree arrangements with the other parent if possible. A parenting expert or child psychologist with experience of separation disputes can assist if needed. As a judge commented recently: ‘The court is there to resolve disagreements that cannot be resolved in any other way but…it is not a third parent.’

It’s also worth bearing in mind that the divorce process itself is dealt with in complete isolation to any financial proceedings and the same applies to any children proceedings. For example, if a divorce petition cites adultery, this will have no bearing on how the finances are resolved or any arrangements concerning the children.

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Laura Rosefield, Senior Partner and Founder, Rosefield Divorce Consultancy

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