In my view, the starting-point for any negotiations over arrangements for children should be shared residence, although this is not (as yet) stated in the law. As a matter of law, the term ‘shared residence’ does not necessarily mean the children spending equal amounts of time with each parent, but this is what I am suggesting, at least as a starting-point. From that starting-point the parents should then look at practicalities, such as whether
each parent has (or can obtain) suitable accommodation for the children and whether each party’s work commitments have any bearing upon their ability to look after the children (it may be possible to alter work commitments but it is obviously not usually practical for either party to give up full-time work – certainly, a court would usually be against this). For other possible factors, see the section below setting out the principles involved in deciding disputes relating to children. Hopefully, once all relevant factors have been considered, the parents will then come to an agreement as to how the children will share their time between them after the separation. As mentioned above, if such an agreement is reached then no court order will usually be made.
If no agreement can be reached, then either parent may apply to the court for a residence order. Note that ‘residence’ means only that – save for being able to take the child abroad for less than one month without requiring the written consent of the other parent or a court order, the parent with a residence order has no greater rights over the child than the other parent. ‘Parental responsibility’ (essentially the right to have a say in major decisions relating to the child’s upbringing) is still shared by the parents. (Married parents will both have parental responsibility automatically.) Note also that there is no longer any such thing as a custody order, although the term ‘custody’ is still in common usage.
If an application for a residence order is made, then the court is likely to do one of three things:
1 Make a sole residence order in favour of one of the parents, meaning that the child/children spend most of their time with that parent; or
2 Make a shared residence order which will not necessarily mean that the child/children share their time equally with each parent (see above).
3 Make no order at all, usually where the parents have settled the matter by agreement.