Talk around custody of children is still something that is commonplace, despite the fact that that term has not been formal in use in legal terms for years. These days, it is about residence and contact and increasingly shared residence. It may be that they are still only resident at their dad’s at weekends and holidays: it should not imply a 50/50 split but allows a framework for true shared parenting. This though can remain elusive unless both parents take a pragmatic approach, put the child first and there are no insurmountable logistical issue – such as mum and dad living in different countries, although even this is not necessarily a bar to a shared residence order.
One parent will still be considered the primary carer and this is still the mum more often than not. Shared residence does not necessarily mean equal care but it enforces the fact that the other parent is to spend good periods of time with the child which does not necessarily mean the “treats and outings” time but also the nagging about homework, making the packed lunch and getting them to school. The shared residence order makes it explicit that both parents must share the parenting role. The child then feels that they have two properly involved parents.
My own cases suggest that the number of shared residence orders is on the rise. My starting point with parents in 'normal' family situations is always shared residence, whether I am advising mums or dads. I think this reflects the reality of families, our expectations of fathers, proper interpretation of case law and judicial guidance, and our responsibility as advisors and officers of the court. If all lawyers advise and properly litigate children disputes as shared residence order applications where appropriate, instead of forcing 'normal' families into archaic homemaker/breadwinner roles with contact and residence, we will change the system, court decisions and the perception the public has that the court thinks only mothers matter.
This last point is key and where the “best solution” arguments set out above can fall down. There has been criticism of some judges trying to show they are fair to women to the detriment of men. Children should be at the heart of considerations and the “rights of the child” need to be looked after, but so do the interests of a father. Agreements can make it very difficult for them or just focus on it being better for the child not to be routinely “shipped from pillar to post” as part of a shared residence order.
It can be the case that it is simply thought that a father cannot give the same day-to-day care as a mother and so their pursuit of seeing children more regularly is not taken seriously.
Shared residence should make it easier for there to be shared parenting but the reality is that this is not always possible. However, at least if everyone starts to consider this to be the norm, from parents, to solicitors to judges, we may be on the right road to getting the best solution for children whose parents no longer live together, as well as mum and dad.
Family solicitor, Somerset