Child support is paid to help cover a child’s everyday living costs and it is the non-resident parents responsibility to pay maintenance to the person who the child normally lives with.

If you are the resident parent and you do not receive Income Support or income-based Jobseeker’s Allowance, you do not have to use the Child Support Agency to come to an agreement over child maintenance: but it may be advisable to speak with a family-law solicitor before setting up a private arrangement.

Who Can Apply For Child Maintenance?

If you apply to the Child Support Agency for payments to be made by your spouse, or your spouse applies for a payment to be made by you depending upon where the children live, the CSA will then undertake a calculation based upon the absent parents net income.

The CSA will require him/her to pay from his/her net income every week the following rates:

• 15 % if you have 1 child
• 20% if you have 2 children
• 25% if you have 3 or more children

This will not apply if your spouse is on any state benefits. If this is the case, a fixed rate of £5 per week will be payable. If you are in receipt of state benefits or will be in the future, then you will not receive the benefit of those payments, the CSA will pay them direct to the Department of Social Security. You will not receive the benefit of those payments.

There is a cap of £104,000 per annum and any income over and above this limit is disregarded. If your spouse’s income is in excess of £2000 per week (£104,000 per annum), or if you have to pay for additional expenses for your children such as school fees or medical expenses for a disabled child, you can apply for the Court to consider this separately. However, you must first have made the application to the CSA, and the CSA will need to have issued a certificate stating that your spouses income is in excess of £2,000 per week, before an application can be made to the court for “top up” of maintenance.

Other factors that will determine maintenance include Shared Parenting and regular overnight contact.

Child Maintenance Calculator

If you would like to know how much maintenance might be payable please check out the CSA’s online calculator.

If you cannot agree on arrangements for where your child should live, you should consider attending mediation before applying to the Courts.

Mediation is not appropriate if you have experienced domestic violence, if you have a disability, or have English as a second language.

Another alternative is Collaborative Law which is about making key decisions about your future all together in the same room, face to face.

Mediation

Mediation is a confidential way for you to arrive at fair, long lasting arrangements, thus reducing the pain and trauma associated with separation or divorce.

With the help of an impartial mediator, or pair of mediators, you can safely air your differences and constructively arrive at financial settlements and arrangements for children that you as a couple choose and work out, rather than having judges or lawyers making decisions for you.

Mediators do not give legal advice and do not represent individuals, although mediators can be solicitors or other professionals who deal with families. When proposals are reached, a summary is drawn up by the mediator(s) which each of you will take to your own solicitor who will consider whether to turn it into a legally binding agreement, and also take care of any other legal formalities such as the divorce itself.

How much does it cost?

If you are eligible for public funding (formerly legal aid) then you maybe entitled to free mediation. Our solicitors can advise on the costs and benefits of mediation based on your individual situation; and we can also make referrals to mediation providers such as Devon Family Solutions Ltd, located in Longbrook Street in Exeter.

Collaborative Law

Collaborative law is fairly new to the UK and is fundamentally changing the way people think about family law. For couples that genuinely seek a fair solution, and want to minimise the pain of family breakdown, it may offer the best way ahead.

What is collaborative law?

At its simplest, collaborative law is about making key decisions about your future all together in the same room, face to face. You agree not go to court and your Collaborative lawyers sign an agreement with you that disqualify them from representing you in court if the process breaks down. This means they are absolutely committed to helping you find the best solutions by agreement, rather than conflict.

The benefits:

• You set the agenda, so you talk about the things that matter most to you and your family.
• You set the pace because you are not governed by court dates and appearances.
• Your children will cope better with your separation if they see that you are working together.
• The decisions are yours – they are not made by a stranger in the courtroom.

How to make it work

You must have a genuine desire to make it work, be willing to disclose information about all assets and maintain regular contact with your former partner. Rather than communicating through your solicitors, you work with them to reach the best solutions for you and your family.

How much does it cost?

Collaborative law can be cheaper than the conventional way of instructing solicitors because you use less of your solicitor’s time.

How to find a collaborative lawyer

There are only about two hundred and fifty lawyers in the UK trained to take this collaborative route, and these lawyers utilise their skills in client representation, negotiation and problem solving to help their clients shape a fair agreement.

The Court’s paramount consideration is the welfare of your children.

The Court’s consider your child’s upbringing, the welfare of your children, and the administration of a child’s property or income arising from it.

When doing so they have to take into account the following:

The wishes and feelings of the children

Whether or not the children’s views will be taken into account will depend upon their age, understanding and maturity.

The children’s physical, emotional and educational needs

This may include looking at the children’s accommodation, medical conditions, religion or education; as well as how close the child is to siblings. The court will consider the short and long term needs of a child.

Likely effect of any change in circumstance upon the children

The Courts are keen to preserve the current situation (see Status Quo) as they recognise that a change in the children’s circumstances usually has an adverse effect upon them. This generally means that the child’s mother is at an advantage, and this is one of the problems fathers have to overcome. A lot will depend upon individual circumstances, but staying in the family home, and having as much contact and involvement in the lives of your children is essential during the divorce process.

The child’s age, sex, background and any other characteristics that the Court considers relevant

Age has a decisive influence on the importance a court will attach to a child’s wishes as older children can choose to live with both parents. The Courts tend to order that very young babies live with their mothers.

Any harm which the children have suffered or at risk of suffering

Under this comes the issue of domestic violence, sexual abuse, physical and emotional abuse. If domestic violence is an issue we will need to notify the Court at the earliest opportunity. It is very important as it is potentially damaging to a child.If there has been domestic violence or sexual abuse or an allegation of domestic violence, sexual abuse, physical or emotional abuse has been made, the Court may well order a separate (Finding of Fact) hearing so that the Judge can make findings as to whether or not violence/abuse has occurred. The case will then proceed as usual with those findings being taken into account. Domestic violence is not an absolute bar to contact but may affect the way in which the Court deals with contact and the frequency of the same.

How capable each parent is and any other relevant person who will be meeting the children

The courts will assess each individual’s ability to care for the child, including the parents lifestyle, health-care and the conduct (criminal record).

The Range of Powers Available to the Court

The No Order Principle

The Court will also have to be satisfied that in making an Order it would be better for your child than making no order at all. The Court may decide that it should make no order because it will only cause further conflict or alternatively because yourself and your former partner may be able to reach your own agreement.

The Welfare Principle

The Welfare Principle is the general principles that the Court’s apply where there is a dispute over a child’s upbringing. It includes the overall welfare of the child as well as the administration of a child’s property or income arising from it.

Wishes and feelings of children

Whether or not the children’s views will be taken into account will depend upon their age, understanding and maturity. The older a child is, the more weight will be given to their wishes.

In order to ascertain the children’s wishes and feelings a CAFCASS Officer may be appointed to speak with the children. Where a child expresses a wish to live with a particular parent, the court will consider the age and maturity of the child as well as any influencing factors. A child may also be scared to voice his opinion, in case it is not what his parents want to hear: a CAFCASS officer will have the experience to recognise if this is the case and will factor this in to his/her recommendation.

Finding of fact

The Court may order a separate hearing to determine if violence/abuse has occurred.

If there has been domestic violence, sexual abuse, physical or emotional abuse or an allegation of such abuse, the Court may well order a separate (Finding of Fact) hearing so that the Judge can make findings as to whether or not violence/abuse has occurred.

Subject to the court’s determination of which side’s version of the facts of a case are to be believed, the case will then proceed as usual with those findings being taken into account.

Children adjust best to family separation when they are able to maintain contact with both parents.

A contact order will stipulate the arrangements agreed upon including direct forms of communication such as face-to-face visiting rights; and in-direct forms such as letters, video, text, email and telephone calls etc.

You must comply with a court order or risk being in contempt of court with serious consequences.

Indirect Contact

Indirect contact (through letters, gifts, phone calls, e-mail, texts etc) may be arranged either by one-way contact where your child does not contact you back, or two-way, where your child replies to your correspondence. Indirect contact can be a way of re-introducing an absent father to his child.

Direct Contact

Direct Contact refers to face-to-face contact, with your child meeting or staying with you. Depending on the circumstances of your case it usually takes place at your place of residence and may include weekends, short / long stays and holidays. The amount of contact is usually specified in the order, although in some cases flexibility exists for arrangements to be made by the parents. The resident parent has a responsibility to make the children ‘available for contact’, which is important for fathers from the point of view of enforcing the order.

Supervised Contact

If there are concerns about a child’s safety, or a father has not seen his child for sometime, supervised contact at a contact centre may be appropriate where someone can supervise the meeting. The order may also contain conditions for the contact to be built up over time. Depending on circumstances, the court may order ‘supported contact’, where the other parent, family member or a friend is present.

Interim Contact

An interim order can be made by the Courts pending agreement or final order and can be issued before the establishment of a routine that excludes you from the children’s lives. This type of contact arrangement is usually on a temporary basis until the matter is settled at a full court hearing.

It is the right of your child to have contact with both parents, and to have a loving relationship.

If residence has been agreed, yet you cannot amicably agree arrangements for contact, you can issue an application for a Contact Order and a hearing date is then set.

Contact with a child is not a parent’s right. It is the right of the child to have contact with both parents, and to have a loving and secure relationship. In deciding whether or not to make a Contact Order the Court have to have regard to a number of factors. These factors are known as the Welfare Checklist.

The First Hearing

On the date that you first attend Court, the hearing will usually be adjourned for a meeting to take place with yourself, your former partner and a Child and Family Court Advisory Service Officer (CAFCASS Officer). This person will meet with you both and attempt to resolve the matter. If you were to agree contact at this stage then you would simply go before the Court and explain to the Court your agreed contact. The Court would then adjourn the case for approximately 8 to 10 weeks, or for whatever time can be agreed, in order to ascertain how contact is progressing. The Court would then on the second hearing date review how matters have progressed.

Unresolved Matters

Should the matter not be agreed then the CAFCASS Officer prepares a report that takes approximately 14 to 16 weeks. This involves meeting with the CAFCASS Officer who may well, depending upon the maturity of the children, speak with them to ascertain their views. The CAFCASS officer will visit the child’s school, meet with both parents and any other relevant person. They will also undertake a police check on the parent’s. The CAFCASS Officer will then prepare a report, using the welfare checklist, as to what, in their view is in the child’s best interest. The CAFCASS Officer will then go on to make specific recommendations to the Court and the Court will not usually depart from these recommendations unless there is a good reason. It is therefore advisable to cooperate with the CAFCASS Officer, although if you disagree with the report you can challenge it.

You would then return to Court to ascertain at that stage whether or not the issues can be agreed. If following that report an agreement cannot be reached, then the matter is listed for a hearing with statements being filed from both of you. The Court will then decide whether or not there should be any form of contact.

How Long Will it Take?

This very much depends on the individual facts of each case and whether or not an agreement can be reached at an early stage. It could take between 6 months to 2 years.

Refusing a Contact Order

If the mother of your child refuses to consent to a contact order you should contact your solicitor for legal advice immediately. For special cases, you may have to take immediate legal action.

Types of Contact

A contact order will stipulate the arrangements agreed upon including direct forms of communication such as face-to-face visiting rights; and in-direct forms such as letters, video, text, email and telephone calls etc. You must comply with a court order or risk being in contempt of court with serious consequences.

Overnight stays bring greater closeness and better quality relationships with your children.

If you have overnight contact with your children, the amount that the CSA would ordinarily require you to pay will be reduced as follows:

Nights Reduction(Per year)

52 – 103 1/7th

104 – 155 2/7th

156 – 174 3/7th

175 1/2

176+ CSA may not be payable.

In addition, if you live with another person who has children from a previous relationship, your income will be reduced (for the purposes of the formula) by 15% if 1 child, 20% if 2 children or 25% if 3 or more children, before the CSA rates are applied.

Also, if you have children from a previous relationship, apportionment rules apply. This means that your income for the purposes of the CSA assessment will be shared between each former partner in proportion to the number of children each has.

If you are in receipt of state benefits the above rules do not apply – you would have to pay a flat rate of £5 per week.

Please note however, there are changes afoot in relation to child support. There is currently new legislation working it’s way through parliament. Once these changes have been confirmed and are in force, we will be able to provide further advice. Child Support Agency legislation is complex.

The above is merely a guide. For further information please use the CSA calculator where you can add in your figures and obtain an idea as to how the CSA rules will affect you.

Status Quo (the present, existing state of affairs) is an important factor in any case concerning a child because it takes into account the family situation at the time the case comes before the court.

For example, the Court is always reluctant to remove a child from its present home unless there is a strong reason for doing so. It follows that the person looking after the child at the time of a dispute is at an advantage. The longer that situation continues the greater the advantage.

When faced with a case concerning a child, the existing circumstances are an important factor for the court to take into account.It is essential to continue to spend time with your children during the separation process; if not, you may be creating a new “status quo” that could have an effect on your wish for the child to live with you (i.e. by way of a Residence Order) or for the child to spend his/her time equally with you and the other parent (by way of a Shared Parenting). The courts place great weight on the current status quo.

When making decisions concerning a child’s future the court uses ‘The Welfare Checklist’. This sets out various mattes that the courts much take into account when making such decisions. One of those factors refers to the effect of a change in circumstances on the child. When faced with two parents of equal merit, one of whom has been caring for the child for a considerable time already, particularly if the child is thriving, the court will almost inevitably grant a Residence Order to that parent.

All other factors being equal, Courts are unlikely to disrupt a child’s schooling and are likely to maintain an existing ‘status quo’ if a child appears to be thriving. If a change in status quo would disrupt the child’s routines, activities, or other events, the Courts are going to need clear reasons and cause for change.

Moving Out Of The Family Home

It is important to stop and consider what effect your moving out of the marital home will have. In the same way as spending time with your children, by moving out you may effectively be creating a new “status quo” and again you may struggle to obtain a Residence order or shared Residence Order based upon the status quo established when you moved out.

Changing An Existing Status Quo

If you are proposing to change an existing status quo, the court will want to hear convincing reasons for doing so. You should think about, and provide, details of how you will minimize the disruption to your child’s life.

If you are applying for a Residence Order (custody), you need to show it is in the child’s best interest to live with you. You will need to think very carefully about their physical needs and daily routines.

One of the most important factors a court will consider in custody disputes, is the existing Status Quo that takes into account the family situation at the time the case comes to court. It is therefore extremely important that fathers stop and consider what effect your moving out of the marital home will have. In the same way as spending time with your children, by moving out you may effectively be creating a new “status quo” and you may struggle to obtain a Residence Order (Custody), or Shared Residence Order (Joint Custody), based upon the status quo established when you moved out.

How Residence (Custody) Is Determined

Family courts have a principle called “presumption of contact,” under which they have to do everything possible for fathers to see their children. Before making a ‘residence order’ the court will consider the welfare principle, welfare checklist, and the ‘no-order’ principle: as well as what is in the child’s best interests and the existing Status Quo. The Court considers the following circumstances in deciding with whom/where the child will live:

• The best person to be able to meet the child’s daily needs.
• The domestic routine of the child up to the present (Status Quo).
• The work commitment of the person/s applying for a residence order (custody order).
• In the case of very young children, the court assumes they are better off living with the mother unless the contrary can be proven. However, the granting of a Residence Order is still subject to the case’s individual merits and may not necessarily invalidate the father’s probability of being granted a Residence Order.
• It is generally considered beneficial for siblings to remain together and there is a preference for the child to be bought up by a parent as opposed to a non-parent, except in exceptional circumstances where the child has formed a strong bond with a non-parent.

It is possible to grant a Residence Order to more than one individual (in the case of shared parenting for example).

A Residence Order also provides Parental Responsibility to the holder of the order for the lifetime of the order, usually until the child turns 16 years of age unless there are exceptional circumstances. For example if an unmarried father without PR is granted a residence order, the court will also have to grant him an order for Parental Responsibility.

Who Can Apply For A Residence Order?

The following people have an automatic right to apply for a residence or contact order:

• The child’s mother.
• The child’s natural father.
• The child’s guardian.
• A stepfather or stepmother.
• A civil partner who has treated the child as a child of the family.
• A person with whom the child has lived for a period of at least three years out of five.
• Any person who has obtained consent from those with PR, or anyone with a residence order, or the local authority if the child is in care.
• All other people require leave (permission from the court) to apply for a residence order (e.g. Grandparents).

Family Courts have to do everything possible for you to see your children after divorce or separation, and consider residence (formerly custody) if applied for.

Having an amicable relationship with your ex is the best way to build a future and a long lasting relationship with your children, and once contact and residence (custody) issues have been agreed, although not legally binding, it is a good idea to have all of the details concerning contact (who, when, where, or possible restrictions) in writing, to avoid potential conflict in the future.

The court’s aim is to assist fathers to safeguard their children’s welfare, and there are a number of orders that a court can make that are of importance to fathers:

• Shared Residence Order (Joint Custody)
• Residence Order (Custody)
• Parental Responsibility

Disputes Involving Your Children

The following orders are collectively known as s8 orders and they should only be sought during a divorce if they will be of positive benefit to your children.

• Contact Order
• Prohibited Steps Order
• Specific Issue Order
• Family Assistance Order