Whenever a divorce occurs, it is in everyone’s interests, that the matter of the children is negotiated and agreed upon amicably. This is a pivotal role that family lawyers have when such as scenario arises, but as any of them will tell you, if their clients refuse to agree on the parenting arrangements, a court will most likely make a parenting order.
Parenting orders should always be seen as the last resort, as not only can they create a situation that neither parent is 100% happy with, there are also the additional legal costs that a court process involves.
The perfect scenario is when, despite them separating and proceeding with a divorce, the parents remain on reasonably friendly terms. If that applies particularly to their desire to protect and care for their children, then even better. What they can then do is create a parenting plan which they both agree to and commit to abide by.
As with any agreement which is simply made amicably, this is not legally enforceable, so should one of the parents decide that they are going to diverge from it in some way, then there could be a problem. Notwithstanding that, this is still the simplest and cheapest way to proceed.
If either, or both, of the parents, want a more formal agreement, which does have legal status, they can opt for a consent order. This is granted by the court, but all the terms within it are agreed upon prior to the court granting it. This it will normally do, but it should not be simply regarded as a rubber-stamp exercise.
The court will check the agreement carefully and if it finds anything which is not legally correct, if there is any part of the arrangement which it feels are not in the best interests of the child, or if it is biased too far in favour of one of the parents, to the detriment of the other, it can ask for the agreement to be amended.
If despite their family lawyers’ best efforts, the two parents cannot agree on the arrangements for their children, then the matter will need to be taken to the court, for what is called a parenting order. The court will assess all the evidence presented to it by both sides, before making its ruling.
Parenting orders are not just granted where there is a dispute between the two parents during a divorce. If at a later date, one of the parents has a significant change in their circumstances, then a new parenting order might be necessary. Children who are perceived to be at serious risk of harm, or where there is evidence of actual abuse or violence, are two other examples of where a new parenting order might be issued.
In most cases, despite the massive impact a parenting order can have on a child, the court will not normally order them to attend the hearing in person. However, what it may do is request an independent children’s lawyer to represent the children’s views, and these can also be included in a family report which the court may ask to be produced.
Following the court’s decision and the issuing of a parenting order, both parents, regardless of whether they agree with the order for not, must adhere to all of its terms. If they do anything which varies from the parenting order or take actions which hinder it being implemented, the court may adjust the order in the other parent’s favour. Other sanctions include fines and imprisonment.