Partner in
Family Department of Fletcher Day
When it comes to fathers and divorce situations, there seems to be two common narratives.
One is the “feckless father” who disappears and leaves the unfortunate mother to manage as best as she can without any support (financial or otherwise from the father) and the other is the father who is denied access to his children by a scheming mother who simply wants all the money she can get.
Hopefully most divorces avoid both of these narratives and involve parents who put their children’s interests’ front and centre at all times.
For the sake of clarity, however, here is a brief guide to where father’s stand legally in the event of a divorce.
Children have rights, parents have responsibilities
Contrary to what can appear to be popular belief, neither the mother nor the father has rights with regards to their children.
Children have rights with regards to their parents, both of them. Parents have responsibilities with regard to their children.
The issue of parental responsibility
In very blunt terms, it’s usually obvious who a child’s mother is. Identifying a child’s father can be rather more complicated.
If a man is married to the mother of a child (during the period in which it was conceived), he is assumed to be that child’s father. Likewise if a child’s birth was registered after 1st December 2003 and a father is named on the birth certificate, that man is deemed to have parental responsibility for the child.
Outside of these situations, a man can be granted parental responsibility by means of an agreement with the child’s mother or through a court order.
What does parental responsibility mean in practice?
The legal definition of parental responsibility is: “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
In practice this means that a person with parental responsibility essentially has a significant say in how the child lives his or her life, including what they do, where they go and when and with whom they spend their time.
Parental responsibility is distinct from the issue of parental access and it is possible for a parent to have the former without the latter, for example to be required to make maintenance payments without having the right of access to the child, although this would be highly unusual.
The right of access
Picking up on the initial point, it is a child who has the right to see his or her father rather than vice versa and access cases therefore revolve around what a court sees as being in the child’s best interests.
The child’s opinions will be taken into consideration although it is possible for a court to overrule them if the court believes that the child is unable to make a solid assessment of the situation, given that, by definition, children lack life experience.
One recent example of this was a case in which a judge ordered a child to continue to live with his mother, when the child expressed a wish to live with his father. The judge wrote a letter to the child explaining his decision and this letter became headline news. Such situations are, of course, extremely unusual.
About Karim Assaad
Karim Assaad is a partner in the Family Department of Fletcher Day.
Karim is an experienced family lawyer for men, who specialises in representing men in family law cases.