Divorce is undoubtedly complex. Emotionally speaking, it can cause a barrage of intense and uncomfortable feelings like grief, anger, and fear to come at you all at once. Then there’s the practical and financial side of things, which are equally as stressful to manage, especially when you are already dealing with your emotional and mental health. If you’re a parent however, these things can pale in comparison to the most pressing concern of all – determining exactly which parent your children are going to live with post your separation, and how those custody arrangements will be made. In the UK, child custody is legally referred to as ‘residence’ and it is determined by the court with the child’s best interests in mind. Below, you can find out more about how this happens and what you should keep in mind if you expect to go to court over the custody of your children.
Understanding Parental Responsibility
‘Parental Responsibility’ is a legal term that refers to a parent’s legal rights and obligations to make decisions regarding their child’s welfare, including education, healthcare, and housing. One might assume that this right is automatically given to both parents at the birth of their child, but this is not actually the case. In the UK, a mother automatically has parental responsibility from birth. However, fathers only have parental responsibility if they were married to the mother at the time of the child’s birth, are listed on the birth certificate, or have obtained it through a parental responsibility agreement or court order. Both parents with parental responsibility have equal rights in deciding where the child lives. As such, if there is a dispute, legal processes such as mediation or court intervention may be necessary to come to a final decision on the matter.
The Types of Child Custody
Custody arrangements themselves can vary depending on the family situation and the needs of the child(ren) involved. As mentioned earlier, if parents cannot agree, the court with always make a decision that prioritises the child(ren)’s best interest based on all the facts presented in the case. However, the two most common arrangements are:
- Joint Custody (Shared Residency): Both parents share responsibility for raising the child, ensuring they spend time with both parents. This arrangement provides stability and allows the child to maintain relationships with both parents.
- Sole Custody: One parent is granted primary custody while the other parent may have contact or visitation rights. Sole custody is generally granted if it is deemed in the child’s best interests.
Once finalised, decisions surrounding custody and the care of children can be formalised into a Consent Order (if agreed between the parties), or in a Child Arrangements Order, should Court proceedings become necessary. This legal document sets out where a child will live and what the contact arrangements with the non-resident parent will be. It can also include specific details regarding the education of the child(ren), their healthcare, and any travel restrictions if necessary.
So How Is Custody Decided?
Sometimes separating parents are conveniently on the same page as to how they want to move forward with co-parenting and child residency arrangements after they separate. Unfortunately, this is more of an exception than the rule and so when parents do disagree, the court may step in to make a fair judgement on the custody of any child(ren) involved. In doing so, the court will follow a ‘Welfare Checklist’ to assess what is in the child(ren)’s best interest, which includes factors such as:
- The child’s wishes and feelings (considering their age and maturity)
- The child’s physical, emotional, and educational needs
- The effect of any changes in circumstances for the child
- The child’s background and any relevant characteristics
- Any risk of harm to the child
- Each parent’s ability to meet the child’s needs and care for them
Additionally, the Children and Family Court Advisory and Support Service (CAFCASS) will usually become involved in assessing the child’s circumstances and making recommendations to the court in terms of any future arrangements for the child(ren).
It is also important to note that after a child turns 16 years old (or 18 if a Child Arrangements Order is in place), they will have the ability to make their own decisions about where they want to live. Therefore, once a child reaches the age of 16, the Court is unable to deal with any applications in relation to contested contact arrangements.
Are There Alternatives to Court?
It is no secret that going to court can be a lengthy, stressful, and very expensive process, so the best-case scenario is always to find a way to resolve custody matters outside of court whenever possible. Mediation is a commonly used tool here, where an independent mediator helps parents reach an agreement in private mediation sessions. If mediation is successful, the agreed upon co-parenting terms can then be made legally binding in the form of a Consent Order, with the help of a solicitor.
Tips for Strengthening Your Custody Case
If you do end up having to go to court, there are some key steps which you can take to improve your chances of a more favourable outcome in the court’s decision:
- Be actively involved in your child’s life – Attend school events, maintain regular contact, and show a consistent interest in their well-being.
- Maintain a stable home environment – Provide a loving, safe, structured, and supportive home life for your child.
- Respect the other parent – Courts favour cooperative parenting, so avoid conflict and encourage a positive relationship between your child and the other parent.
- Document interactions – Keep records of communication, visits, and any missed contacts to demonstrate your commitment to parenting your child.
At Grayfords, we understand how sensitive dealing with your children in a separation or divorce can be, and we believe in enabling parents to find solutions to any custody issues they may be facing as easily and as quickly as possible. Whether you need assistance with reviewing and making a call on any outcomes of mediation sessions, or whether you need help in getting a Child Arrangements Order in court, our family law solicitors are here to help. Don’t hesitate to call us today on 020 7100 6100 to book your free consultation and find out more.
