Each child’s best interests are the starting point
When two children have different views about contact — spending time with the other parent — this often creates one of the most complex situations in family law. Many parents assume that the court will make the same decision for both children, but the reality is considerably more nuanced.
In a child custody dispute, the starting point is neither the parents’ rights to their children nor the idea that siblings should always be treated identically. The starting point is the best interests of the child. This means that each child must be considered in light of their own needs, their own relationship with their parents and their own wishes.
Why do the children feel differently?
The court tries to understand why the children feel differently. If one child is eager for contact while the other opposes it, the difference in their wishes is rarely the problem in itself. The real question is what lies behind it.
Two siblings may have lived in the same family yet have entirely different experiences of a parent. One child may have had a close, secure relationship, while the other has experienced conflict, disappointment or insecurity. The court and the local authority’s family law service therefore try to look beyond the child’s stated wishes to understand the underlying reasons.
The child’s wishes carry considerable weight
In current legal practice, considerable weight is given to a child’s wishes, particularly when the child has reached an age and level of maturity at which they can be considered capable of expressing an independent view. This does not mean that the child decides, but in practice it is very difficult to enforce contact against an older child’s strong and consistent wishes.
Courts recognise that forced contact risks causing further damage to the relationship and, in some cases, may also adversely affect the child’s psychological wellbeing.
Resistance and possible influence
At the same time, you need to be aware that the court does not automatically accept a child’s resistance. If there are indications that the child has been influenced by the other parent, this will be examined carefully.
Many child custody disputes involve allegations that one parent has influenced the child to distance themselves from the other parent. The court must then try to distinguish the child’s own wishes from any possible influence. However, it is important to understand that, even where influence has occurred, a child’s resistance may become so strong and so real over time that it can no longer be disregarded.
Siblings can have different contact arrangements
A question that often arises is whether siblings can have different contact arrangements. The answer is yes. It regularly happens that contact works well for one child but not for a sibling.
The court naturally sees value in siblings continuing to share experiences and maintain their relationships with both parents, but this consideration must not take precedence over each individual child’s best interests. If the court concludes that contact benefits one child but not the other, the result may be two different arrangements.
The children’s ages matter
In my experience as a family lawyer, the children’s ages are often decisive. If, for example, we are talking about two teenagers, one of whom wants to see their father while the other refuses, the court will normally give considerable weight to both children’s own views.
If the children are younger, however, investigating the reasons becomes considerably more important than the wishes they express.
The court considers the whole picture
It is also important for you to understand that a child custody dispute is not decided on the basis of a single factor. The court always makes an overall assessment. No single circumstance is decisive on its own. The court considers:
- The children’s relationship with each parent.
- The parents’ ability to care for the children.
- Any conflicts.
- The children’s need for stability and continuity.
- Any risks of harm to the children.
- The children’s own wishes.
What I would want to know
If I were assessing a case like this in a professional capacity, I would want to know:
- The children’s exact ages.
- How long one of the children has opposed contact.
- How strong that resistance is.
- What the local authority’s family law service has established through its conversations with the children.
- Whether there is any documentation explaining the child’s position.
Individual needs may call for different arrangements
The most important point to understand, however, is that the court does not ask what is fair between the parents, or even between the siblings. The court asks what is best for each individual child.
Two children in the same family may therefore have different contact arrangements if that is what best meets their individual needs and interests. This is also a trend we are seeing increasingly clearly in current legal practice, where greater weight is being given to the child’s own voice and individual circumstances.