Key questions to ask your solicitor about child custody

If you’re going through a divorce or separation and have children, they will most likely be the centre of the conversation. This often means that you’ll need to get a lawyer to help you reach the best outcome for them.

Many solicitors offer initial no obligation meetings to discuss your situation and understand how they may be able to help you. These meetings are often charged at the solicitor’s hourly rate, so it’s important to make the most of the time that you have with them. In this blog, I summarise the key questions that you should have in mind when speaking to your solicitor about child arrangements, and why they are important.

Before approaching your solicitor, you should be aware that in family law, we don’t use the term ‘custody’; instead, we refer to parental responsibility and child arrangements.

What are my responsibilities as a parent?

As a parent, it’s important to understand what your duties and responsibilities are towards your child. This is called Parental Responsibility and includes providing your children with a home and caring for them, but also making more specific decisions such as in relation to schooling and medical care. Your solicitor should be able to advise you on how your parental responsibility is exercisable in your specific situation and how this interacts with the parental responsibility of your co-parent.

How can I change the current arrangements?

If you’re approaching a solicitor, then it’s likely the relationship between you and your co-parent has broken down and either you or they want to change the current arrangements. Your solicitor will be able to talk to you about what has happened that brought you to their office, and what your objectives are moving forwards.

They should discuss with you the option of alternative dispute resolution (ADR) to try and resolve any disagreement between you and your co-parent. This may include speaking directly to them, involving a family friend or family member as a third party, mediation (including child inclusive mediation), using solicitors and ultimately court. Make sure you give them a background to yours and your co-parent’s relationship and communication so they can advise you what ADR method may be most suitable to you.

If an agreement can be reached between you and your co-parent, then your solicitor can help draft this into a parental agreement to record what you have agreed. This document can be helpful in future when you and your co-parent are determining matters in future or if ultimately a court application in future is needed.

Do I have to go to court?

Court proceedings are long and expensive, and they generally polarise the parties. This isn’t helpful when children are involved because whether you like it or not, you and your co-parent will need to communicate about your child for at least 18 years, but more likely for the rest of your lives.

It’s helpful to know whether your solicitor is the kind that believes court fixes all or whether they will first try ADR. Ultimately, if you cannot reach agreement then the only way to force a decision on either parent is to make an application to court. But this should be seen as a last resort and even if you are the applicant, it doesn’t mean that you will be successful or get the outcome you seek.

Your solicitor should be able to talk you through the merits of any possible application, as well as the risks. You should ask them for an idea of their cost estimates (including whether a barrister or other expert may be needed) and timescales.

If I go to court, what factors will the court consider when making a decision?

There are numerous things that the court will consider if they are invited to make a decision. There will be some standard considerations, like the welfare of the child, but there may be factors that are specific to your case. The court will always have its paramount consideration be to the welfare of the child, and in considering this, they will look at the welfare checklist. This includes various things such as the age and wishes of the child, but your solicitor should be able to talk you through what is specifically poignant in your case. Your solicitor will also talk to you about the role of CAFCASS, who are the court’s appointed social worker, and provide recommendations to the court on the outcome of the case.

Your solicitor should be able to explain to you what specific considerations are likely to arise in your case. For example, it may be necessary in your case to have evidence from third parties such as a GP or school. It may also be necessary to have witness statements or have what is called a fact-finding hearing if there are allegations of abuse.

What are the potential outcomes of court?

The outcome of the court case will depend on your specific circumstances. Once an application is made to the court, then the court has a duty to ensure that any outcome is in the best interests of the relevant child. Your solicitor should discuss with you your aims for any court application or, if you’re the respondent to an application, what your response and position is. They will be able to advise you on the possible outcomes in your case, though they can never guarantee an outcome. Family Courts have a lot of discretion so be prepared to hear a range of possibilities.

What happens once the court makes an order?

It’s important to understand what happens once a court order is made as this may affect whether you want to make an application in the first place. Your solicitor can talk you through the effect of an order including what happens if the order is breeched. There will be legal implications for a party that breaches an order, and there are actions that the non-breaching party can take in these circumstances. They should also discuss with you ways to minimise the risk of an order being breached such as attending family therapy and the use of a parenting co-ordinator.

What resources are available to me?

Solicitors have great access to resources that may help support you in your specific situation and in your local area. This may be specific parenting courses, therapy or mediation services, or other family law professionals. They will also be able to direct you to online resources for you to read further about your options. If you are looking to act in person (i.e. without a solicitor) then they will also be able to explain next steps in terms of making an application to the court yourself and where to find all the necessary information about this.

What happens next?

When you engage a solicitor, you will be sent their letter of engagement and terms of business. You should read these carefully and make sure you are familiar with them as they will continue to apply throughout your case. At the end of your first meeting with a solicitor, you should have more information about the options available to you and you may wish to take some time to process this. If you want to engage that solicitor for further advice or work, then they will be able to tell you what further information they need from you to get started.

Throughout your meeting with your solicitor, remember that they are there to support and guide you through the process. But they are not your confidant or simply your mouthpiece. Solicitors are officers of the court which means that they have a duty to operate towards the proper administration of justice, so if you tell them something then they may have a duty to disclose it during proceedings at a later date.

Our children lawyers have a great dealing of experience dealing with child arrangement disputes and separation. Get in touch for an initial meeting or support through your court application.

Our content explained

Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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