Comment: Wishes and needs of the child paramount

CUSTODY disputes taken to court will always decide in a child's favour, especially as the child matures, writes Ewan M Campbell

Madonna and Guy Ritchies son Rocco apparently now wants to live with his father in London. Picture: Getty
Madonna and Guy Ritchies son Rocco apparently now wants to live with his father in London. Picture: Getty

When your mother is a pop superstar based in America and your father is a film director in London it is never going to be easy to sort out living arrangements after a separation.

Over the past few weeks, it has been difficult not to be aware of the latest celebrity custody dispute between Madonna and her ex-husband, Guy Ritchie, over their teenage son, Rocco.

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It is understood the 15-year-old wishes to remain with his father and his new wife and family in London, while Madonna is determined that he returns to the US.

Rocco, who spent a number of months on the road with his mother last year, left the US for London in December. He then, according to reports, refused to return to the States for the Christmas holidays. On the application of his mother to the courts in America, a judge appears to have ordered that the teen return to the US to ‘sort out his living arrangements’.

It is understood the case is due to be heard in the New York Supreme Court in early March in the hope that the matter can be settled.

International child arrangements are never easy if the child is thousands of miles away from one of their parents, which is why, more than ever, the child’s needs and wishes should always be at the forefront of any discussions.

This becomes even more relevant if a child is in his teenage years and more able to clearly make their feelings known and state their clear preferences for any arrangements proposed.

Sadly, what often happens is that parents use children as a way to ‘get at’ their estranged partners.

Contrasts in parenting styles, educational wishes, and disciplinary methods of each parent can be reasons why parents wish to fight out such issues in the courts rather than come to any agreement between them.

Sometimes parents can believe that fighting these issues through the courts will also prove their love for a child and will show how much they wish a child to return to their tender care.

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Having divorced parents can be traumatic for children and a court’s paramount consideration will always be the welfare of the child.

Depending on the child’s age, the court may attach strong weight to the child’s own wishes and feelings about where they wish to live and with whom they wish to stay.

If the parent with whom the child is currently staying, chooses to ignore a request to appear before a court abroad, where the other parent is based, to discuss appropriate living arrangements for the child, the parent who has legal custody of the child could use a treaty under the Hague Convention to enforce their custody rights.

This treaty was designed to assist parents wishing prompt return of abducted children to their home country where the child habitually lives. However, the parent with custody may face a defence to a Hague Convention application in so far as a country may refuse to return an ‘abducted child’ if that child is objecting and has reached an age or level of maturity which would allow the courts to consider the child’s views also.

At almost 16 years old, a child is most likely to be viewed as being able to voice his own opinion in both the UK and US courts.

Shared parenting can be difficult, particularly where there is acrimony between parties. Unfortunately when parents cannot come to an agreement by themselves, they are often left with no choice but to look to the courts for help.

The ultimate aim of the court is to assist the parents to come to some agreement rather than to dictate; however, the courts will always place the child’s needs before the parents’ desires.

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No loving parent wishes to see less of their child and can understandably be hurt if a child makes it clear that they do not wish to live with them.

However, acting in the child’s best interest can sometimes mean giving up control and allowing them to live where they might choose to live rather than where the parent might wish them to live. It is therefore always hoped that common sense will prevail between parents and, with the assistance of experienced family law solicitors, agreement can finally be reached between them and the child, without the need for recourse through the courts.

• Ewan M Campbell is an associate and accredited specialist in family law at Russel + Aitken LLP