Angelina, Brad and the concept of custody

Divorce|September 20th 2016

This just in: actress Angelina Jolie has filed for divorce from actor husband and heart throb Brad Pitt, signalling the end of ‘Brangelina’ one the best known (and wealthiest) celebrity couples in the world. According to reports, she has cited ‘irreconcilable differences’ – one of the only two grounds for divorce available in ‘no fault’ jurisdiction California.

And according to news reports, it’s all about the kids. Or is it?

The pair had been together since 2005, after meeting on a film set, but they did not get engaged for another seven years, finally marrying in 2014. It was her third marriage and his second.

‘Brangelina’ was arguably the first of the modern crop of husband/wife “super brands” – but one that has seemed to be turning sour. Initially it was all about him- far more famous than her, and married to the even more famous Jennifer Aniston, who he famously dumped for her. As Angelina’s  star ascended and she branched out into world politics, always providing a perfect shot in war-torn areas of the world, his seemed to quietly wane (how many more Ocean’s 11 sequels could they make?) and no doubt it showed at home.

This seesaw up-then-down dynamic happens in marriages worldwide of course. Now she is fast outshining him and perhaps they both cannot handle it. She may have lost her respect for him and he may loathe her and find the world a miserable place right now.  Of course, this is only speculation. We don’t yet know yet what went on in this marriage and for the sake of their children, I actually hope we never know. Although I doubt a lid will remain on events for long. The tone by which this divorce has begun doesn’t suggest an amicable split.

It seems the couple’s children are at the root of their present problems: reports suggest she is unhappy with Brad’s parenting style.

Jolie is reportedly insisting on ‘physical custody’ of the children, with Brad receiving only ‘legal custody’ (i.e. the right to have a say in their upbringing), along with visitation rights, or what would be termed ‘contact’ on this side of the Atlantic.

To me, an English attorney, ‘custody’ sounds very old-fashioned. The entire concept was removed from English law by the Children Act in 1989. Why? Because ‘custody’ implied a form of possession of the child by a parent and the primacy of that parent’s rights. In current law, married parents both have parental responsibility for a child, which cannot be removed by the court, except in the most extreme of circumstances.

The child’s best interests are instead placed at the centre of family law. If necessary, under the Child Arrangements Programme introduced in 2014 a court may make a ‘child arrangements order’, which sets out which parent the children of divorce or separation should live with, when and for how long.

But you’d never know all this as far as the public are concerned. How many times have I been asked by clients about custody and access? Too many to count and my answer is always the same: they don’t exist. The response is invariably one of shock and confusion. You’re kidding? No, I’m not.

Instead parents must focus on the practical aspects of parenting – where the children are to live and with whom. How is the day-to-day parenting of the children to be shared between Mum and Dad? There is a presumption in law that, except in cases of likely harm, both parents should be involved in a child’s upbringing – but the government was careful to clarify when this measure was introduced that it does not imply any equal division of time.

Only whatever is judged to be in the best interests of the child will count. How many nights should a child stay overnight with the other parent? What suits that child best, given their domestic and school arrangements, their after- school activities? Parents are encouraged to complete a timetable for parenting the children during both term times and holidays, and they are strongly encouraged to stick to it as well.

If parents cannot agree, then every  effort will be made by the Judge to encourage agreement by conciliation rather than a full scale court battle. But if a court hearing is what it takes, then that is what will happen.

In England child cases are also kept private to protect the child. Their details are usually anonymised, but even where a case is surrounded by the glare of worldwide publicity and impossible to keep completely confidential, only as much as needs to be reported will be, and the rest will remain private, away from the media. Recently the Court released the English judgments in the trans-Atlantic dispute over teenage Rocco Ritchie’s living arrangements. The specific allegations made by the parties against each other, however, were not made public – because doing so would not have been in his best interests.

I think the English system has much to commend it. Forget about ownership of a child – you have parental responsibility anyhow – and instead focus on the child. Look forwards not back and get it all sorted as soon as you can. You will all come out of it far better off – as will the children, and that’s surely the most important consideration of all.

Over the Pond and across the world it is not quite the same for this couple. The public are thirsty for all the salacious details to come pouring out the bottle. This process has already begun and speculation is rife as to just what happened. Why shouldn’t he have joint physical custody? California law sets out various exceptions in relation to conduct. How it all turns out we will have to wait and see. But it’s a pity. Both parties will have their millions of supporters:- and detractors, all set to go. This divorce, a couple, their children and worldwide brand, is big news.

As for the finances, and how they’re going to be sorted out, that’s another post…

Author: Stowe Family Law

Comment(1)

  1. Shahab Azim says:

    Very well written article. If children interest and well being is of paramount consideration then mothers arguements become human and very important for the well being of the children. In exceptional cases the judgement can tilt in favour of father

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