Child residence (custody): how a woman's career may affect her rights


Woman in meeting looking at watchMany women who return to work after having children are unaware that the way in which they structure their return to work could impact on the amount of time they are able to spend with their children in the event of a future divorce or separation.

Myths and legends of divorce law

A number of myths surrounding family law persist, which means women may be less aware of some of the realities of the divorce process.

Terms such as 'custody' and 'shared residence' are bandied around, but these are misnomers that simply reinforce underlying myths. For example, in the 1970s when fewer than 5% of women assumed the role of the family breadwinner, the default assumption (of parents) was that children would live with the mother upon divorce for the very same practical reasons considered by the court today.

But society has changed: increasing numbers of women are the higher earner, and the role taken on by men in the home and in caring for children has changed considerably in the past decade. Despite this, the assumption persists that if a couple split the children will generally remain living with their mother.

The court's duty to act first and foremost with the welfare of the children as its paramount consideration in divorce cases is enshrined in statute and has been for decades.

Who children live with in the aftermath of their parents' divorce may come down to a question of practicalities: who is able to take the child to and from school, who has time to pack the PE kits, make packed lunches and be home in time to read a bedtime story every day.

A mother who has never thought twice about going back to work and providing for her family -perhaps because she has no choice given the economic climate or because her partner has been made redundant - can discover on divorce that her partner (who may have been looking after the home or working in a less-demanding job) is granted residence of the children.

Of course, this has been the position for fathers for some time as the law has not changed, but it may come as a shock to mother who haven't been aware that this was a possibility.

Alongside the outdated and inaccurate assumption that on divorce children automatically remain with their mother, sits the confusions surrounding 'shared residence' orders.

Parents often mistakenly assume that 'shared' means a 50/50 division of time, but this is far from the case in England (notwithstanding Coalition government plans to consult on legal options to strengthen the law to ensure both parents are able to have a relationship with the children after relationship breakdown).

Achieving a perfectly equal time split for children can be incredibly difficult to achieve in practice – it involves a level of cooperation between ex-partners that is very difficult to maintain if parents do not live near each other and are unable to communicate effectively. Otherwise, how can they ensure that their children are fully prepared for music lessons on Wednesday, swimming classes on Thursdays and that classmate's birthday at the end of the week?

Safeguarding your children's time with you

How do you ensure that you are in the best position to secure the childcare arrangements you are happy with should your marriage ever break down? The key is to understand that the decision to step back on to or remain off the career ladder can have long-term implications. If you decide to stay on the career path, here are some tips that may help safeguard your time with your children: 

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  • Consider whether it is possible to work a three-day or four-day week – this is no barrier to success as many high-flyers are demonstrating, but could mean a lot in the eyes of the divorce courts.
  • Maximise remote working opportunities – you could be home for bedtime every night and resume work after the children are asleep, if needs be.
  • Take professional advice immediately in the unfortunate event that your relationship with your children's co-parent breaks down.

Of course, no one should live life in fear of a future event which may never happen, but it's important for both women and men to make informed choices about the way they organise their working life long before it gets any split and to understand the potential consequences of their choices.

The content on this page is supplied by the Family Law team at Withers LLP

Last updated: over 1 year ago