SHARED RESIDENCY: THE PROPER ARRANGEMENT

There is only one way which will enable the divorced dad to minimise negotiations with his ex with regard to access, and that is to ensure that when they split up she agrees to him having shared residency status for the children.

When you split up, ensure that your ex-partner agrees as part of the divorce discussions for you to have shared residency rights over your children. This is probably the important rule in this book, so ensure that you read the following pages carefully.

What is shared residency?

It means that you have an equal right to decisions about your child, such as schooling, activities, and health. It also protects your rights to have access to your children. In practice, it does not necessarily mean that your child lives with you for 50 per cent of the time. This may not be desirable, either from your perspective or that of your child.

In fact the law says it

...should be flexible enough to accommodate a much wider range of situations. In some cases, the child may live with both parents, even though they do not share the same household. It was never our intention that children should share their time more or less equally between the parents. Such arrangements will rarely be practicable, let alone for the child’s benefit.

Law Commission 1998 report on the wording of Section 11(4) of the Children’s Act 1989.

By achieving shared residency you can avoid many of the issues that as a contact parent make you a second-class parent. You will be treated in the courts as an equal parent, not one who is only a bit part in your child’s life.

When to get shared residency

When you were still together and living at the family home you automatically had shared parental responsibility with your partner. It was on that basis that you had a family in the first place. You need to use all your powers of persuasion with your ex-partner to draw up the terms of your divorce with shared residency as the basis of your relationship with your children.

If the situation is that as a dad you and your ex-partner were never living in the same house, then clearly, the situation is different, and it will be a lot more difficult to get your ex to agree to shared residency. You may even have a struggle to get your name on the birth certificate.

At the start of your separation, get your partner to agree to a shared residency order for the children.

• You don’t need to explain the full implications of shared residency.
• Persuade your ex with phrases such as, ‘We are both the parents – I want the kids to know that we share the responsibility.’
• Don’t use bribes – use negotiation.
• Raise the subject of shared residency when you start to talk about separation.
• Make sure that your ex-partner knows that you are not trying to take the kids away from her home, and that shared residency does not have to mean that the kids live with you 50 per cent of the time.
• If you have already separated try to introduce the subject, but not via your solicitor, as she will immediately get her solicitor to give her advice which will probably be not to consider it.
• Don’t make an application to the court without talking to her first – it will just be a waste of time and money. If you do apply to the court you will need her support unless you want a real fight.

Sole residency

When a couple get divorced, their children continue to live with their mother, and under the terms of the divorce settlement a statement of the child’s arrangements are made by the court.

In the overwhelming majority of divorces, the residency of the child is given to one parent (normally the mother) and a contact order may also be made, detailing the allowed contact with the other parent. In fact, sole residency gives the resident parent a power over access that was never intended under the Children’s Act 1989, and remains the biggest obstacle to a divorced dad in maintaining an unencumbered relationship with his children.

Most divorced dads do not realise the significance of this when they agree to it, thinking that it is normal. By agreeing to mum becoming the resident parent and themselves the contact parent, they subjugate their position in legal terms for the rest of the child’s life.

This is the first surprise that most divorced dads get when they start to look into how to get more access to their kids, or how to get protection from the courts with issues over access. They discover that as a contact, not a resident parent, they are in fact a second-class parent.