Can stay-at-home fathers win custody battles?

Chris Burns, Head of Family Law at Lupton Fawcett. (S)
Chris Burns, Head of Family Law at Lupton Fawcett. (S)

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Scarlett Johansson has recently filed for divorce against her estranged husband Romaine Dauriac, at a time when the couple were attempting to negotiate arrangements concerning their two-year-old daughter Rose.

Yet another high-profile couple begins their journey along the well-trodden path which still bears the footprints of Angelina Jolie and Brad Pitt, together with thousands of other ordinary folk up and down the land

Scarlett is seeking joint custody but wants Rose to live with her. However, Romaine is claiming he has been the main carer for Rose whilst her mother has been busy working to a hectic celebrity schedule. He wants Rose to live with him in France and for Scarlett to spend time with Rose whenever she happens to be there.

The approach taken by this father is one which family lawyers are seeing more and more of. Mr Dauriac may not be your typical ‘stay at home’ dad but the same principles in his case apply to any father in his situation who wants to care for a child when the parental relationship breaks down.

So what legal principles does a court consider when determining with whom a child should live?

The overriding principle is that the welfare of the child is the court’s paramount consideration.

There is also a presumption that, unless the contrary is shown, the involvement of both parents in the child’s life will further the child’s welfare. However, this does not necessarily mean that the time spent with each parent will be equal.

In the case of young Rose, the main factors a court is likely to focus on would include:-

• Her physical emotional and future educational needs;

• The likely effect on her of any change in her circumstances;

• Any harm she has suffered or is at risk of suffering;

• How capable each of her parents are in meeting all of her needs

In older children, courts also consider the ascertainable wishes and feelings of the child concerned, bearing in mind his or her age and level of understanding.

The gender of any potential carer is not a specific consideration applied by courts in such disputes. Indeed, these same principles apply to arrangements for those children of same sex relationships which also break down.

If Romaine’s assertion that he has been the child’s primary carer is factually correct, then a court would closely examine the advantages and disadvantages for Rose of maintaining or changing the status quo and ‘the likely effect of any change in her circumstances’

Time will tell who will win this dispute but unfortunately for Rose, the arguments over her future are likely to be played out in our newspapers for some time.

For further help or advice in relation to this article, please contact Head of Family at Lupton Fawcett, Chris Burns, on 0113 280 2115 or