If you are able to discuss matters with your spouse, then you should speak to them direct and try to agree childcare arrangements with them, including which parent the children will live with, and what contact the other parent will have with the children.
This simply means with whom the children shall primarily reside, or whether they will share their time (approximately) equally with each parent ('shared residence'). If the children do live primarily with one parent, that does NOT give that parent any rights or responsibilities in respect of the children over and above the other parent.
This is mainly the time that the children spend with the 'non-residential' parent, including what days, times of collection and return, and who will collect the children from, and return them to, the 'residential' parent. There are no rules as to how much contact a non-residential parent should have, but it will usually be at least once a week and may include overnight stays and additional contact during holiday periods. Contact also includes contact by other means, such as telephone, letter, email, internet messaging and text message.
Shared Residence simply means the child will live with both parents and has two equal homes. It does not necessarily mean an equal division of the child's time.
The 'no order principle'
If you can agree arrangements for residence and contact with your spouse, then no court order or other documentary proof of the agreement will usually be required. In fact, there is a general principle that says that no court order will be made relating to childcare arrangements unless such an order IS required - in other words, the law leaves arrangements to the parents wherever possible. This allows flexibility, so that the parents can agree to alter the arrangements (whether permanently or on a temporary basis), without having to go back to the court.
If you are unable to sort out arrangements for the children with your spouse direct, then you may wish to consider mediation. Mediation is a process whereby the parents will have one or more meetings with a trained mediator, who will help the parents try to agree arrangements for their children. Mediation is purely voluntary, so that it can only take place if both parents agree. Mediation is not free (although legal aid may still be available), but the cost of mediation will usually be substantially less than the cost of contested court proceedings.
I have not yet agreed arrangements for the children with my spouse. Can I still issue the divorce proceedings?
Yes, you can, the divorce petition now only requires the details of the children and not the arrangements for their care.
If I agree to the children living primarily with my spouse, will I still share parental responsibility for them?
Yes. Where the parents were married, both will continue to have parental responsibility for them, irrespective of the childcare arrangements.
Can we have a written agreement without going to Court?
Yes you can; this would be a Parenting Agreement, this is not a legal contract and it isn't intended to be enforced by a court. In fact, it is intended to help separated parents stay out of court by encouraging them to make practical and workable arrangements for their children by themselves. it will give both parents a valuable opportunity to sit down and discuss how you both would like your children to be raised post-separation and give you both the chance to discuss your children and their upbringing, and covers all aspects to the children’s lives. A Parenting Agreement demonstrates a willingness to co-operate and agree between the parents.
Do we take into account the wishes of the children?
Yes, if appropriate. See Step 3 'Investigation'.