Katie Holmes and Tom Cruise’s divorce has been big news ever since the story broke on Friday, but one central aspect is that Katie Holmes is allegedly going for full custody of the pair’s daughter, Suri.
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Although sole, full or legal custody does not exist in England, is it ever fair to take a child away from one of its parents entirely?
Tanya Roberts, partner at Charles Russell LLP, explains the English system.
She says, “The concept of ‘full/sole/legal custody’ does not exist in England. Here both parents on divorce would retain full legal rights and duties and the issue would be one of ‘Residence’ and how much time the child spends with each parent.
“Shared Residence orders are the most common orders but they are just a title and the definition of how time is split is the more important question. It could be 50:50 but could also be a much more unequal division.
“However even if one parent is the primary carer, in time, the other does not have less of a say in major decisions concerning the child such as education, religion and medical treatment.”
Tanya explains that Katie Holmes seems to be applying for an order that would allow her to make the decisions unilaterally about Suri, especially her religion.
Tanya says, “Presumably she is not saying that Cruise should never see her but rather that Suri lives with Holmes and has ‘visitation’ only.”
So is it okay to separate a child from one of its parents?
In America it seems as though it’s a lot more likely of happening and can cause the child’s best interests to be ignored.
Tanya says, “The advantages of the American system is that where there are parents who cannot agree on anything there is less litigation if decisions are made by one only. The disadvantages are that one person's view prevails without a neutral third party looking at it, weighing up both sides and seeing what’s in the child's best interests.”
Luckily, in England, the child’s interests get taken into consideration a lot more heavily.
Tanya says, “The English courts are respectful of the importance of differing religions/cultures/views within a marriage and would try to accommodate both as long as they took the view that it was in the child's best interests.”
Obviously there are times when a child could be potentially in danger if they are not separated from a parent, but for the most part, it seems that it’s in the child’s best interest to be nurtured by two parents, rather than one.
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