Divorce and Children - Parental Responsibility

Parental responsibility – what is it?

Parental responsibility is a concept defined in the 1989 Children’s Act and it is very important to consider if you and your spouse have children and are planning to divorce. The Act defines parental responsibility as ‘all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to his/her child and his/her property’ – which, broadly speaking, means those rights you would expect a parent to have with regard to their child. Such rights include the ability to make a decision regarding medical treatment and decide where a child should live.

Who has parental responsibility?

Mothers – a child’s mother automatically has parental responsibility, whether she’s married or not. Fathers however, only have automatic Parental Responsibility if they are:

• married to the mother of the child, or

• named as the child’s father on the Birth Register – in respect of any child registered born after 1st December 2003.

Adoption

If a child is adopted, the adoptive parents automatically get parental responsibility, as does someone with a residence order [ for the duration of that residence order].

Sharing parental responsibility

If parental responsibility is shared by more than one person, then any big decision making about a child should also be shared. Parents or others sharing parental responsibility should consult with each other with regard to major decisions.

Gaining parental responsibility

A father without automatic parental responsibility can acquire it in the following 3 ways;

• by an agreement with the mother (a parental responsibility agreement) – a specific form that needs the signatures of both parents and should be filed the court, or

• obtaining a parental responsibility order from a court [usually if mother refused to sign a parental responsibility agreement]

• by gaining a residence order in respect of the child

If you find yourself in a position where you need to obtain parental responsibility for a child from the court, you will need to be able to prove your commitment to the child, as well as proving it was in the interests of the child.

Parental responsibility and contact

One thing to note is that parental responsibility doesn’t guarantee that you will have contact with the child even though you have the legal right to do so, as there are other issues to take into consideration, such as contact orders.

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