Child custody and child maintenance: your questions answered

What is joint custody?

English Law no longer uses the term ‘custody’ in relation to children. It prefers to talk about ‘residence’ which describes who a child lives with or ‘child arrangements’ which is a more broad description of how a child spends his/her time from week to week.

Joint custody or ‘shared residence’, as we now refer to it, is an arrangement that recognises that a child lives with both his/her parents after their separation, even if the division of time between their homes is not equal.

How can I get to see more of my children?

The family court can decide the arrangements for a child spending time with either parent or keeping in contact with them. We know, however, that court proceedings can be lengthy, expensive and stressful. There are a number of strategies that we can use to help improve the situation without having to go to court.

Our expert family lawyers in Tunbridge Wells and London have a track record of helping their clients to improve arrangements for children using both court based and non-court based strategies.

My ex-husband/wife/partner will not let me move abroad with the children. What can I do?

English Law is clear that if a child is taken out of the UK by either parent without the consent of the other parent, they could well be committing a criminal offence. The family court, however, has the power to decide whether a child should be allowed to move abroad with one parent.

It is a complex area of law and we would always advise either party to take legal advice as early as possible, even whilst your plans are being made. Proper planning and a comprehensive presentation of those plans can be key to success.

What level of child maintenance can I expect?

Child maintenance is payable to the parent with care of the children by the non-resident parent until they reach 18. This is calculated by reference to the non-resident’s parent gross income and varies depending on the number of children. The calculation takes into account the number of nights the children stay with you and whether you have any children living with you.

The Child Maintenance Service deals mostly with child maintenance queries and the family court only becomes involved if the non-resident’s gross income is over £156,000.

Will I have to pay fees to the Child Support Agency if I don’t pay child support on time?

Yes, as a result of changes to the child support system, the Agency can now charge fees where an application for child support is made. The non-resident parent, normally the father, will have to pay an additional 20% of the basic liability and the mother pays 4%, which is deducted from the basic liability.

These charges can be avoided if you opt for the direct pay system whereby the Agency sets the liability but the payments are made direct by you to your former girlfriend. You must be aware though that if you do not pay on time, then your case may be moved into the “collect and pay” system, when the charges will bite.

Is it true that the Child Support Agency can now use out of date income information of the father for calculating child support?

Yes, in the new gross income scheme, which deals with all new cases since November 2013, the Agency will use income data provided to them by HMRC. HMRC, will in turn, provide income data for the “latest available tax year”. If, therefore, the father has not done his tax returns for the last couple of years, he may find that the liability is calculated by his income position as it was 3-4 years ago.

I have just been made redundant, but the Child Support Agency are refusing to alter the amount that I am due to pay, what should I do?

You should provide documentary evidence to the Agency of your redundancy, and ask them to base the liability on your current income, as opposed to historic income provided by HMRC. The Agency must use your current income figure provided it is 25% less than the income figure that they have been provided by HMRC.

Has the new Child Maintenance Service replaced the Child Support Agency?

No, the Child Maintenance Service deals with new cases that entered the system since November 2013, whereas the Child Support Agency deals with cases that entered the system prior to this date.

Do I have to pay child support as well as spousal maintenance if I get divorced?

If you have children, then you are likely to have to pay child support, via the Child Support Agency, in any event. You may also have to pay maintenance for your spouse if your child support payments, and your spouse’s income, is insufficient to enable your spouse to meet their reasonable living expenses.

Can my former husband apply to the Child Support Agency to have child maintenance payments reduced?

Your husband is able to make an application to the Agency 12 months after the date the court order was made. The Agency will automatically take over the question of child support, which will then be based on a set percentage of his gross income. If an application is made to the Agency, then this will override the court order and it could be that if your husband’s income has reduced, then he will pay less than £100 per week.

My former partner’s circumstances have changed as she has moved in with her new boyfriend who is very rich. Do I still have to pay child support?

Yes, your liability exists whilst the children are in primary or secondary education. Unfortunately, the financial circumstances of your former partner are irrelevant and, on this basis, it will still be necessary for you to continue to pay child support.