The breakdown of a marriage is often one of the most difficult things a person may face. It is emotionally draining, and it can be difficult to make clear decisions. However, for children, it can be devastating, as they are faced with the loss of security of their home and family, and they often feel torn by having to choose between their parents. It is for this reason that parents are encouraged to make decisions that ensure the continued well-being of their children. This can become difficult when it seems like a parent is trying to use the children as tools in the divorce process. This is where the welfare principle takes precedence. The welfare of the children is always the paramount consideration in all matters where children are involved. This means that in order to make all decisions, including in divorce proceedings, the court must consider the well-being of the children first.
In the Cayman Islands, persons can apply for a divorce in person, meaning that they are not required to have an attorney to seek a divorce from the court. In circumstances where parties are able to agree the arrangements for the children's maintenance and schooling as well as settle the division of their property, they can proceed with this process through the courts, unrepresented. However, more often than not, parties find it difficult to agree arrangements with the other party. In those circumstances, an application to the court may be required to settle those arrangements.
The Children Act (2012 Revision)
Applications with respect to children of the marriage are filed pursuant to the Children Act (2012 Revision). Pursuant to this law, a "child" refers to someone who is under the age of 18 years. Further, a "child of the family" refers to any child who is born to both parents in a marriage, or though not born to both, has been treated by the parties as a child of the marriage.
Pursuant to s10 of the Children Act, the court is empowered to make a myriad of orders with respect to children of the marriage, including residence orders, contact orders, specific issue orders, prohibited steps orders and others. Residence orders were previously termed custody orders and refer to orders that clarify the parent with whom the child will primarily live. The ideal situation is where parents can agree to share the residence of the child so that the child is able to have equal time with each parent. Contact orders, previously called access orders, are orders which outline the staying or visiting arrangements which a child will have with the parent he/she does not live with, requiring the parent with whom the child lives to allow the child to spend adequate time with the other parent. It is the right of the child to have adequate contact with each parent. Specific Issue orders are sought in circumstances where parties are unable to agree specific arrangements for the children, such as schooling or travel. Prohibited steps orders are sought in circumstances where one party is seeking to prevent the other from taking an action with respect to the child which they are not in agreement with, such as removing the child from the jurisdiction to reside in another country.
It is important to note that, in the Cayman Islands, the court will not make any of the above orders with respect to a child of the marriage unless it considers that doing so would be better for the child than making no order at all. Additionally, the court will not make any order which will end after the child reaches the age of 16, unless it is satisfied that the circumstances of the case are exceptional.
When parties are unable to agree arrangements for their children and make an application to the court for assistance in settling those arrangements, the parties are first referred to the mediation department to attempt to settle the outstanding issues with the assistance of an experienced mediator. The mediator is an independent third party who is generally able to help parties put aside their personal feelings and make decisions that are conducive to the welfare of their children. The mediator has knowledge of the laws in the Cayman Islands and is able to advise the parties on what the likely outcome of court proceedings would be, without the cost of having to pursue a court matter. At the end of the day, the parents are generally the best persons to decide what arrangements will work for their children given their unique schedules and feelings.
The Welfare Checklist
On the occasions however, where the parties are unable to agree the arrangements for their children, even with the benefit of mediation, the court will be called upon to make those arrangements and the child's welfare will be paramount. When considering any decision with respect to the child, the court will have regard to the Welfare Checklist laid out in the Children Act. The Welfare Checklist refers to the factors which the court will consider in making any arrangements for children. These include:
- The ascertainable wishes and feelings of the child - the court will decide what weight it will place on this factor based on the age and understanding of the child. Consequently, the court is more likely to place significant weight on the wishes of a 14-year-old as opposed to a 5-year-old.
- The physical, education and emotional needs of the child - under this factor, the court will consider any physical or learning challenges which a child may face and make a decision that best suits those challenges.
- The likely effect of any change in circumstances on the child - the court will consider how a change in living arrangements or even a change in country of residence will affect the child emotionally and physically.
- The child's age, sex, religious persuasion, background and any other characteristic which the court considers relevant - the court will consider what effect a change in residence may have on a toddler or perhaps how a change in the religious background of a home may have on a child. Previously, there had been a presumption that children of tender years needed to be placed in the custody of their mother, but this has been debunked given the reality that more and more fathers have become versed in caring for their young children and share the responsibilities with the mother.
- Any harm which the child has suffered or is at risk of suffering - this refers to any physical, emotional or psychological harm which has been caused by one parent or the other, such as the effects of alcoholism, or any harm which presents itself as a risk which the child may face in the care of a parent.
- How capable the parents are of meeting the needs of the child - this factor does not refer to whether the parent is financially able to meet the needs of the child, but rather their emotional and physical capabilities.
- Any other relevant circumstances - this is a catch all factor which allows the court to use its discretion to consider any other factors, not mentioned above, which it considers relevant in making any decisions for the welfare of the child.
In applications of this nature, the court operates as the "parens patriae", which is the stand-in parent of the child, and this empowers the court to make orders which one parent or the other may not agree with, but which is conducive to the welfare of the child.
HSM has the knowledge and expertise necessary to guide any parent through the intricacies of filing such applications in the court of the Cayman Islands. We can also effectively guide parents through mediation to sort these arrangements for their children without recourse to the courts as this is what works best for the welfare of the children involved.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.