Who Has More Parental Rights – Mother or Father?
Posted: 30th August 2024
by Gemma Holmes
In family law, we don’t really talk about who has “more parental rights” because every family is different and there are so many factors at play when it comes to child arrangements.
Parental responsibility refers to the rights and obligations that parents have for their children. In the UK, the law says that the mother always has parental responsibility for her child from birth, however, this is not always the case for the father. Unless the father is married or in a civil partnership with the child’s mother or is named on the birth certificate, he does not automatically have parental responsibility.
If both parents have parental responsibility, this means they have equal rights and duties in making important decisions about their child’s life such as their health, welfare, education, and general upbringing.
If parents separate, child arrangements (previously known as custody arrangements) must be decided to work out how much time the children can spend with each parent.
In some cases, a judge will make a final decision on what the arrangements for the child will be based on their best interests, however we encourage parents to negotiate an agreed position with the other parent.
As a starting point, in child arrangements cases, the assumption is that each child should spend their time equally between both parents and their wider family. Deciding where the child lives is a long-term arrangement and not something that should be changed without a very good reason.
There are a huge number of factors and issues that can impact child arrangements, some of the most common issues that we come across include the following:
Domestic Abuse
According to the Office for National Statistics, women are more likely than men to experience domestic abuse. However, sadly, we know that men also suffer domestic abuse but are less likely to report it. Any form of domestic abuse is a serious consideration that the court will take account of when making child arrangements.
Neglect
Neglect is when a parent or parents fail to meet their child’s basic needs like feeding them or making sure they have the right education. Neglect can be identified by parents or professionals such as teachers, social workers or medical professionals. Any welfare concerns will be investigated and assessed to ensure that the child arrangements are safe and in the best interests of the child.
Substance Misuse
In some child arrangements cases, a parent may allege that another parent is misusing drugs or alcohol.
The court may do a drug or alcohol test to check that the individual is no longer using. They could do this through a “Hair Strand Test” where they take hair from the head and the body. This is a good method of testing because it can detect drug use for up to 12 months and can pick up on patterns of usage. Other forms of testing can be done too by taking nail clippings, saliva or urine. The results are assessed and depending on the outcome, child arrangements may be altered to fit the child’s best interests. Just because results come back as positive does not mean that the parent will be prevented from seeing their child, it really depends on the situation.
Criminal History
If one parent has a criminal record or has been convicted of a violent crime, the court may be concerned about the risk this poses to the child’s safety in terms of the people they are associated with and the types of behaviours the child witnesses. Standard safeguarding checks will involve looking into any police or local authority involvement with the individual parents and the family as a whole.
Parental Alienation
If the court believes that one parent is actively trying to damage the relationship between the child and the other parent, this could impact the child arrangements.
When it comes to making decisions, the court will also consider these factors, including the child’s relationship with each parent, each parent’s ability to meet the child’s needs, and the child’s wishes and feelings (if they are old enough to express them). Gravity will be placed upon the child’s wishes depending on their competence levels.
According to research by the Children and Family Court Advisory and Support Service (Cafcass), the child’s preferences prevail in around 90% of child arrangements cases. There is no ‘one size fits all’ family arrangement and this is what makes child arrangements so complex and often fraught with different views, wishes and perspectives.
Also, child arrangements can be agreed upon by the parents outside of court through family mediation for instance. Out-of-court settlement can be a more amicable and less stressful way to agree as it is quicker and cheaper than going through the court process. However, any agreement made outside of court would not be binding without a judge’s approval.
Whilst a court order is not a requirement, sometimes, where it is necessary and the ‘no order principle’ is satisfied, the court will make an order by consent. The court will still need to check the safeguarding letter from CAFCASS and be certain that the order is necessary and in the best interests of the child. There are many parents who have less formal arrangements such as a parenting agreement, which whilst not legally binding, provides a helpful aid when it comes to things such as birthdays, Christmas and holidays. This can sometimes spark a difference of opinion between parents.
If you’re going through a separation or divorce and are unsure about how best to organise the arrangements for your children, it’s best to seek legal advice to ensure that you fully understand the process. You can contact us by emailing [email protected] or by calling 0330 024 0245 for an initial discussion about your situation.