One of the areas that I am most often asked about by my clients is the concept of shared care order or lives with /lives with child arrangement order. There are many myths about it and what it means and often people are quite confused about the implications.
Custody/ residence / ‘lives with’ orders
The terminology around orders has changed a lot over the last few years which adds to the confusion about what they all mean. The first thing to know is that the terms custody, residence and lives with child arrangement order all mean the same thing. They are all different ways of saying that a child lives with that parent or carer. Residence and custody are now not used in court orders (although they are often still flung about when people discuss matters!). The term contact has also been replaced. The latest legislation refers to ‘lives with ‘ and ‘spends time with’ child arrangements orders. Of course in practice the meaning is exactly the same as when they were residence and contact orders so don’t let the terminology confuse you!
Why the change of terminology?
The reason the name of the orders changed was to try to stop the culture of there being a perceived ‘winner’ and ‘loser’ in child care proceedings. Along with changing the names there was an accompanying change of approach suggested. It was thought that where possible the child should ‘live with’ both parents; helping the parents and the children to see that they were all as important as each other and there was no ‘main’ carer.
Before these changes a ‘joint residence/custody’ order was fairly rare. It usually only happened if there was a 50/50 split of the children’s time between the parents. The other important change in the approach therefore was that it was no longer considered necessary for the children’s time to be split equally for there to be a ‘live with/live with’ order. Even if one party was only seeing the children every other weekend and half the holidays there is no reason the order could not be a ‘lives with/lives with’ child arrangement order if it was felt helpful.
Legal advantages of a ‘lives with’ child arrangement order
The practical advantages of having a ‘lives with’ child arrangement order over a ‘spends time with ‘ order is that you have the ability to take the children out of the country on holiday for up to 28 days at a time without having to seek the consent of any other party.
In relation to non-parent carers a ‘lives with’ order also gives Parental Responsibility for the children and therefore allows you to make decisions for them, apply for passports etc. As the child’s natural parent (who appears on the birth certificate for all births after 1.12.2003) you would automatically have these rights so a ‘lives with’ order would not make any difference.
The advantages of having a ‘lives with’ order over a ‘spends time with’ do not reduce if you both have one. As with all rights based situations giving someone else the same rights as you doesn’t mean you have less- it’s not like having a cake where there is only so much to go round. It is also not the same as having no order as in that situation neither has the rights that the order gives.
What a lives with order doesn’t give you
There are a lot of myths about what a ‘lives with’ child arrangement order gives you. Here are some of the things that it does not!
- It does not give you the right to decide what school or nursery the children go to without consulting the other parent.
- It does not give you the right to move out of the country without gaining consent from the other parent.
- It does not give you the right to change the children’s names without consent of the other parent.
- It does not give you the right to exclude the other parent from the children’s lives, events, school or medical appointments.
- It does not give you the right to make any big decisions for the children without consulting the other parent.
Of course some of the above may be things that you could get separately within a child arrangements order, but they do not come automatically.
Essentially a ‘lives with’ child arrangement order does not reduce any of the rights that the other parent has by having parental responsibility. Any person with parental responsibility for a child (whether via the birth certificate or statutory declaration or court order) has the right to be consulted and involved in all important decisions for that child. Having a ‘lives with’ Child arrangement order is not a golden ticket to do what you want without consulting the other parent.
Lack of certainty /structure or enforceability of a ‘lives with /lives with’ Child arrangement order
There is also an incorrect belief that having a ‘lives with/lives with’ child arrangement order means that there is no clarity about when the children live with each parent/carer. In reality it is just as easy to lay out arrangements on a ‘lives with’ basis as it is on a ‘lives with/ spends time with’ basis. There is no reason matters should be any less clear or enforceable. If the children are supposed to be living with the mother on Mondays and the father does not return them, it is just as clear that they are in the wrong place and therefore he is in breach of the order. This would be dealt with by the court in exactly the same way if he had a ‘spends time with’ order.
Psychological advances of a Lives with /lives with order
In many cases though the fact that the title of the order is a joint one takes a lot of the upset out of proceedings – especially for the party who is spending less time with the children and therefore can sometimes otherwise feel diminished as a parent. If both parents feel equally valued it can go a long way to helping them co-parent in the best interests of the children. It promotes the idea for both parents that the child has two homes (even if they do not spend equal time in each) and that parenting should be co-operative rather than a battle to be won or lost. It also can encourage more flexibility as people tend to feel more defensive of their time when they are only ‘spending time’ rather than having the children ‘living with’ them. When their child lives with them, even for the same amount of time, they often feel more secure about the relationship and so are happy to swap days or take the children to a party/clubs.
Overall there is no reason to fear a ‘lives with/lives with’ child arrangement order. It is obviously not always the right order. Especially in cases where there is a need to indicate a primary carer, where there has been domestic abuse, control issues or where the parties live a long way away from each other. In these circumstances ‘a lives with/spends time with’ order may well be more appropriate. In most cases however, as the aim of all children related court orders is to sort matters out in such a way that the parents are given a spring board to move forward and therefore don’t need to come back to court, an order which is expressed in a shared way can really help.
For most parents the only real advantage of having a ‘lives with’ order over a ‘spends time with’ order is the ability to take the children on holiday without having to get the other parent’s consent (and that right is not lost if you both have one!). I would therefore encourage parents to think about the psychological advantages of an order that can make both parents feel equally important. If agreed it is also a way of both parents saying they recognise the other as crucial to their child. When parents feel respected by each other they are much more capable of building ( or rebuilding) trust and moving forward together. This makes future day-to-day discussions and planning easier. Most importantly if parents are less defensive and more co operative the chances of them having to return to court at a later date are greatly reduced. Going to court, especially over your children, is a huge burden. It causes stress, emotional upset and financial difficulties. If calling your order something different can help you work together and avoid court in the future, I think that has to be a good thing!