Co parenting: Legal considerations every parent should know

Amber Kennedy is an expert in parental legal rights. Separating from your child's other parent is one of the most difficult and stressful times a person could experience during their lifetime. Here, Amber explains some of the key legal points parents should consider if they are considering separating.

Parental rights 

Generally, a better starting point is for you and your child’s other parent to try and decide what the best arrangements for your child will be.  It may suit your lifestyle for your child to spend an equal amount of time living with both of you.  Putting the needs of the child ahead of parental ‘rights’ tends to have a better outcome for all in the long run.

• Can one parent stop the other parent from seeing their child?
• What is co-parenting?
• What if we can’t reach an agreement regarding the arrangements for my child?
• Is there anything the court can’t make a decision about regarding my child?
• Will I lose parental responsibility for my child if we separate?
• How do I know if I have parental responsibility for my child?
• If we share parental responsibility, are there any decisions in relation to my child that I can make on my own?
• If we share parental responsibility, are there any decisions in relation to my child that we must make together?
• What is a Parenting Plan and would it be useful for us?
• Are parenting disputes common?

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Can one parent stop the other parent from seeing their child?

It is presumed to be in the best interests of a child to have a meaningful relationship with both parents, unless it can be shown that such involvement would put the child at risk of suffering harm.  Having both parents play an active role in your child’s life is the best way to ensure that your child’s needs are met and to enable your child to retain a close relationship with both of you.

Unless there are any safeguarding concerns, one parent cannot stop a child from spending time with their other parent, unless the court has decided this would be detrimental to the child’s welfare.  The court will only prevent a child from spending time with one of their parents if this improves the child’s quality of life.  Some examples of reasons the court may prevent a child from spending time with one of their parents are:

• domestic abuse
• drug and/or alcohol abuse
• inappropriate behaviours which places the child at risk

Every family and every situation is completely unique.  In some cases, it is possible for a child to safely spend time with both parents even if one parent has acted inappropriately.  For example, consideration should be given as to whether contact can take place on a supported or supervised basis.  Extended family members or contact centre staff could monitor contact sessions to ensure the child is and remains safe. Alternatively, if it would be detrimental to a child to have face-to-face contact with one of their parents, it may be safe for them to have indirect contact (e.g. telephone calls, letters etc).   

Specialist legal advice should be sought immediately if you are being prevented from seeing your child.  If such a dispute is quickly resolved and it is recognised that a relationship with you is in your child’s best interests, it becomes easier to re-build and re-establish your relationship.

What is co-parenting?

Making decisions together is often referred to as ‘co-parenting’; parents working together to make joint decisions about their child’s upbringing and agreeing on what would be in their child’s best interests.  Most experts agree that co-parenting creates a calm and stable environment for a child (which, in turn, positively impacts their emotional well-being). 

Co-parenting vs parallel parenting 

Parallel parenting is an alternative approach to parenting your child when separated from your partner. This allows the child to spend time with both parents and have both their parents in their lives whilst minimising the possibility for conflict between parents. Each parent seeks to have control of their own parenting arrangements and approach when their child is in their care without having to refer to the other parent (save for in circumstances where they would be expected to do so due to both parents having parental responsibility, for example, decisions surrounding education and health). It allows both parents to approach parenting their child in their respective style. Whilst this may be beneficial for the child, consideration should be given as to whether an inconsistency in relation to parenting approaches will be confusing for the child. 

Parallel parenting can sometimes be beneficial to parents where there is a high level of domestic conflict (e.g. where there has been domestic abuse). Parallel parenting does not mean there is no communication between the parents: just that communication is limited to circumstances where it is necessary, for example, an emergency. 

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Co-parenting rules

The rules, as such, for co-parenting are essentially limited to the list of topics on which both parents must be consulted and make together.  However, there are a lot of things which are a good idea to consult with each other on, although not mandatory or actual rules.  The more you can discuss and agree together, the more successful your co-parenting relationship is likely to be.

Here are some things which may help; they are often strategies which would be useful in any confrontational situation:

• communicate –with a little work this should be possible. Even in situations where there has been domestic abuse, consider whether there are any steps you could put in place to still allow communication to take place, for example, the use of a parenting app that contains features to flag when someone is using inflammatory language. Don’t use your child as a go-between. It’s not a positive example to set for your child and they will feel uncomfortable.  
• be flexible – if one of you asks to swap weekends to take your child on a trip or to visit a family member, is there any harm in doing so (unless you genuinely have plans already in place)?  Your child will be grateful for and remember that they weren’t prevented from doing things because they fell on the ‘wrong’ weekend.
• pick your battles – all parents, whether separated or not, approach some situations differently. This is normal!  Although you should try to agree ground rules and values, embracing your differences on occasion is not a bad thing.
• trying to think about things from the viewpoint of your child’s other parent can help you empathise with them; even if you don’t agree entirely, there is often a compromise which can be reached.

What if we can’t reach an agreement regarding the arrangements for my child?

You and your child’s other parent may disagree about who your child will live with, how they will divide their time between you, or about a decision which needs to be made jointly by you both. In this situation, either of you may make an application to the court to resolve any disputes.

Asking the court to become involved should always be a last resort.  Court proceedings tend to be expensive, time-consuming, stressful and confrontational.  The last thing you want to do is increase any animosity between you and your child’s other parent, which will negatively impact on your child’s emotional well-being (often in the long term). It is therefore important to explore other avenues before applying to court.

Mediation may be a suitable option for you and your child’s other parent. Mediation can facilitate constructive discussion, helping parents to identify potential solutions and reach their own informed decisions on how best to co-parent their child.

At Tees, we have several trained mediators who would be happy to assist in helping parents reach a solution outside of court and in a way that can preserve a good working relationship between the parties, which is of particular importance when co-parenting.

An alternative to mediation, which we have recommended successfully to a number of clients where disputes arise over their children is separated parent support workshops.  For example, Kids Come First, are an organisation that provides specialist guidance on co-parenting. Kids Come First offers sole and joint workshops at an affordable rate and can help co-parents work together and avoid the protracted and costly court process where it is not necessary. You can visit their website at https://kidscomefirstuk.co.uk/.

Should the alternatives to a court application fail to resolve the issue, you can turn to the court for assistance. The court will always look to establish what would be in your child’s best interests.  It will consider and apply certain factors, known as ‘the welfare checklist’.  These factors are as follows:

• the ascertainable wishes and feelings of your child (considered in light of their age and understanding)
• your child’s physical, emotional and educational needs
• the likely effect on your child of any change in their circumstances
• your child’s age, sex, background and any characteristics which the court considers relevant
• any harm your child has suffered or is at risk of suffering
• how capable you and your child’s other parent (and any other relevant person) are of meeting your child’s needs
• the range of powers available to the court.

Is there anything the court can’t make a decision about regarding my child?

Often, a parenting issue is not a ‘legal’ issue.  The court generally expects parents to work together and agree how to parent their children.  The court won’t usually get involved with day-to-day issues regarding the arrangements for your child, such as what time they should be going to bed, what they should wear, who can childmind them etc.  

Will I lose parental responsibility for my child if we separate?

In many cases, you and your child’s other parent will share parental responsibility for them.  If so, you will both retain parental responsibility after separation. It is possible for the court to make an order that removes parental responsibility from one parent however.

How do I know if I have parental responsibility for my child?

If you are the child’s mother, you will automatically have parental responsibility for your child from birth.

If you are the child’s father, you will usually have parental responsibility if you:

• were married to your child’s mother at the time your child was born
• jointly registered the birth of your child with your child’s mother on or after 1 December 2003
• entered into a parental responsibility agreement with your child’s mother
• obtained a parental responsibility order from the court

If you are a same sex couple, both parents will have parental responsibility if they were civil partners at the time of the treatment (e.g. donor insemination or fertility treatment). If you are a same-sex couple and are not civil partners, the second parent can obtain parental responsibility by either: 

• applying for a parental responsibility if a parental responsibility agreement is made 
• jointly registering the birth 

If we share parental responsibility, are there any decisions in relation to my child that I can make on my own?

Yes – here is a non-exhaustive list of decisions you could make while your child is in your care without notifying or consulting with your child’s other parent. These are limited to day-to-day decisions such as:

• how your child spends their time and activities they take part in
• how to routinely discipline your child
• personal care (e.g. washing, dressing, feeding, administering prescribed medication)
• care and control of your child’s personal possessions and property
• making and attending routine medical check-ups (e.g. appointments with a dentist or optician)
• attendance at school functions and parents’ evenings
• appointing a guardian in your will to care for your child in the event of your death

You should notify your child’s other parent of the following decisions (although you are not required to consult with them):

• seeking medical treatment for your child in an emergency (and the reasons for this)
• holiday bookings and taking your child abroad while your child is due to be in your care
• routine visits to a doctor or nurse (and the reasons for this)
• change of address within the local area, that would neither disrupt contact arrangements nor require a change of school
• change in living arrangements, such as a change to those who are or will be living in the same household

If we share parental responsibility, are there any decisions in relation to my child that we must make together?

Yes, anyone who has parental responsibility for your child must be consulted about and jointly make decisions regarding the following:

• which school your child will attend
• whether your child should take time out of school (and the reasons for this)
• planned medical and dental treatment (beyond routine check-ups), including whether your child should be immunised or take prescribed medication
• circumcision or sterilisation
• at what age your child should be allowed to watch videos or play computer games (e.g. those recommended for children over the age of 12, 12A, 15 etc)
• your child’s surname
• whether or not your child should relocate to another part of England and Wales or abroad

What is a Parenting Plan and would it be useful for us?

A Parenting Plan is a document setting out the practical issues of your day-to-day parenting.  It helps focus discussions and is useful to record any agreements between parents on how to approach parenting their children on particular topics.  It saves misunderstandings in the future and serves as a helpful reminder, as you can easily refer  to it.  If you do end up applying to the court, your parenting plan can be evidence of what was intended and agreed when you separated.  

You can’t plan for everything, and sometimes unforeseen things happen, which is why flexibility is important.  The Parenting Plan itself is extremely flexible – there is no set format but generally, the more detailed you can make it, the more useful it will be to refer to in the future. It is important to note that, whilst it can be persuasive to the court, a parenting plan is not legally binding or enforceable. If you have concerns about needing to enforce certain aspects of an agreement in relation to your children, you should seek expert legal advice from a family solicitor as to whether a parenting plan will be sufficient to meet your needs. 

Are parenting disputes common?

Very!  However, if you start off in the right way by positively promoting a co-parenting relationship, they can be avoided.

What should my next step be?

If you do separate from your child’s other parent, try to work with them to raise your child together. This is not an easy task, but it is possible. Nurturing your child and encouraging them to have a loving relationship with both of you will enable your child to grow up feeling secure and loved, something every parent wants for their child.

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• Cambridgeshire: Cambridge
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But we can help you wherever you are in England and Wales.