Welfare of Child Remains Priority for Courts In Divorce Process.

If press reports are to be believed, the Kim Kardashian /Kanye West split will not lead to a custody battle of the likes of Angelina Jolie and Brad Pitt.  Kim Kardashian is reported to have filed for divorce on Friday 19 February in Los Angeles, and is seeking joint custody of their four children, daughters North (aged 7), Chicago (aged 2) and sons Saint (aged 5) and Psalm (19 months).

Some may express surprise, given Kanye has struggled publicly with mental health.  Here, the family court in England and Wales are concerned with the child’s welfare.  Section 1 of the Children Act 1989 states:

Welfare of the child.

(1)When a court determines any question with respect to—

(a)the upbringing of a child; or

(b)the administration of a child’s property or the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration.

If Kim wanted to argue for more time with the children, then she would probably use Kanye’s mental health as a reason and say that the children were not safe with him.  She would be advised to consider this very carefully.  She’d need to be able to give a number of incidents/ examples of when Kanye’s behaviour and his mental health had been detrimental to the children’s welfare. It can often be a tricky route to go down and needs careful thought before the allegation of a risk is made.  If the Court thinks a parent’s motivations are not about protecting the child’s welfare, but about getting more time with the child, it can backfire and even result in the parent making the allegations getting less time with the child than they might otherwise.

The Children Act 1989 goes on to say, at section 2A:

A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

This amendment was made by The Children and Families Act 2014 and emphasises the importance, and indeed presumption, that  both parents involvement in the child’s life is best for the child’s welfare (unless the contrary is shown).  This change has aided the change in the Court’s approach here to more father’s having shared care, including half the school holidays.  All the more reason why careful thought needs to be taken before challenging that presumption – the evidence needs to be persuasive.

In the West/Kardashian split, it may be that the couple share nannies and other child care staff, and Kim trusts them to protect the children if Kanye’s behaviour was worrying or he became unwell.  She may also feel that there is trust between her and Kanye, and that he’d tell her himself, and know she wouldn’t take advantage in that situation but give him support.  The couple come under a lot of criticism for their self-promotion and reality tv series.  This could be an occasion where they set an example of how to co-parent on divorce.

If you would like a confidential discussion on divorce or separation, please call divorce lawyer Lisa Pepper on 0207 485 8811 or complete an online enquiry form.

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Lisa Pepper Partner
Family Law

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