Who Will get ‘Custody’ of our Children in a Divorce?

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Chris Fairhurst

Partner, Family Law and Divorce Solicitor

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The concept of custody doesn’t exist in the law of England and Wales anymore. Instead, the law looks at who has parental responsibility for the children. That means the people who have the right and responsibility to make important decisions about a child’s life, including where they will live and who will provide their childcare.

A child’s birth mother will always have parental responsibility. A father will also automatically have parental responsibility if he was married to the mother. The rules are different when parents are not married, so it is worth seeking specialist advice if this does not apply to you.

Because of this, it is up to divorcing parents to decide between themselves how their children will be looked after. There are no rules that one parent will automatically have childcare rights over and above the other. It all depends on what is in the children’s best interests.

Some people find it helpful to set the childcare arrangements out as part of what’s called a Parenting Plan. A Parenting Plan isn’t legally binding, but it will set the intention for how children will be cared for after a divorce. It can also consider other issues, such as:

  • where the child or children go to school
  • who takes care of them
  • where they live
  • how you’ll support your children financially
  • how any health issues will be managed

Deciding how each parent will look after a child or children in a divorce can become more complicated if the parents can’t agree. When children are involved in a divorce, our Family Law Solicitors can help you explore your options going forward.

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Where Will Our Children Live?

In the event of a separation or divorce, it’s common for one of the parents to move out of the home. While this isn’t always the case, it’s the most common thing to happen following a split. If the family home is in joint names, both parents will have a right to live there.

Often, it’s more practical for children to remain living in the family home. This is because it helps to minimise any upset in routines and keep things as normal as possible. In this situation, the children would then live with the parent who remains at the family home.

It’s also common for children to move between two homes on a regular basis, such as weekly or bi-weekly, depending on the childcare agreements.

If both parents want to be involved in the children’s life, then they should come to an agreement between themselves that allows this to happen. If you can’t mutually agree, you could appoint a family solicitor to advise you on the best options.

 

Will We Have to go to Court?

There’s a common misconception that all divorcing parents will have to go to Court to decide how care of their child will be set out, regardless of the situation.

If you can agree on your child or children’s arrangements, you won’t need to do any official paperwork, other than setting out your Parenting Plan if that is something you would find helpful, but it is not compulsory.

The Court operates on a “no order” principle. This means the starting point is that it will not make any orders that bind parents to certain arrangements unless it is in the child’s best interests to do so. Usually, there is no need for this. The Court would much rather leave parents to work out their childcare arrangements privately between them. They will only intervene when necessary. That is usually when parents cannot agree the arrangements between them.

 

What if We Don’t Agree?

If you can’t come to a decision on how your children should be cared for, you can ask a specialist family solicitor for advice. If it is appropriate, a family solicitor can try and help you resolve the dispute in writing.

The next step worth considering is usually mediation. Mediation is used to try and resolve disputes quickly to lessen the stress on both the parents and the children involved.

Mediation won’t be the same for everyone. It will be carried out with your individual situation in mind. Sometimes parents will be seen separately and then brought together to make a decision. Other times, parents are together throughout the mediation, with a Solicitor or representative in the room. Sometimes, mediation will not be appropriate, for example, if there has been a history of domestic abuse.

If mediation fails, or is not appropriate in your case, the next option will be applying to the Court for a Child Arrangements Order. It’s important to note that, except in certain limited circumstances, you can only apply to the Court if you’ve at least consulted a mediator to discuss whether mediation is suitable for you.

 

How Long Will It Take?

If neither of you can come to an agreement and it goes through the Courts, there’s no way to determine how long it will take. There are many factors that can influence a decision when it comes to childcare arrangements.

If you’re able to come to an amicable agreement, it will be finalised much quicker. But in the event where an agreement just isn’t happening, the process can have significant delays.

When you speak with your Family Solicitor, they’ll be able to advise on how long the process is likely to take, based on the circumstances.

 

What is a Child Arrangements Order?

A Child Arrangements Order will set out the arrangements for a child or children. It can determine where and with whom a child shall live, and also the time that they shall spend with the other parent. If parents can’t agree, these decisions will be made by the Court, and you will likely need to attend a Court Hearing.

To get a Child Arrangements Order, you’ll first need to make an application to the Court. Anyone with parental responsibility can do this. Our Divorce Solicitors can make the application on your behalf and represent you at the Court Hearing.

 

How Will the Court Make Their Decision?

The Court’s paramount concern is the best interests of the child or children involved. The Court will make an order that it considers in the child or children’s best interests.

In most cases, unless there’s potential for harm to the child, the Court will consider it in a child’s best interests to have both parents in their lives. The specific arrangements will depend upon what is best for the child or children in that particular case.

They will consider:

  • the effect of any change on the child or children’s wellbeing
  • the wishes of the child if they’re mature enough
  • any special educational needs
  • the child’s sex, age, background any characteristics considered relevant
  • any harm the child has suffered or is at risk of suffering
  • the ability of each parent to meet the emotional and physical needs of the child

Our Divorce Lawyers will help you to get the best outcome for you and your child, based on your own situation.

Sometimes the Court will also appoint a CAFCASS Officer to spend time with a family which will help them consider what is in a child’s best interests and provide recommendations to the Court for the future. CAFCASS are the organisation responsible for advising the Court about matters related to children’s welfare.

 

Can I Get Full Care of Our Children?

While it’s possible to gain Full care of your child, it’s important to take into consideration the best interests of the child. The Courts prefer Joint care, as it allows the child to maintain a relationship with both of their parents. But, in some circumstances, this isn’t possible and Sole care is preferential.

Here are some things that are taken into consideration when determining whether or not to grant Full care:

Deemed as Unfit to Parent

In certain situations, a parent can be declared as unfit to be a parent if they are unable to provide sufficient care for the child. For example, they may show very little interest in providing for the child or struggle with addictions.

Abuse or Neglect

If there’s a record of child abuse, neglect, or domestic violence, a Court will be keen to grant the other parent Full care to protect the child’s welfare.

Criminal Record

If one of the parents has a criminal record that involved violent actions, it may be possible for the other parent to gain Full care. It’s also common for a parent to be granted Full care if the other parent is serving a prison sentence.

Child’s Preference

Depending on the age of the child, the Court may take into consideration who the child would like to stay with. In some situations, the child’s preference goes a long way to determining who gets Full care.

Unable to Provide

If one parent is unable to meet the child’s basic needs, they may lose care of the child. For example, the Court will look into whether or not the parent can provide medical care, shelter, food, and education.

 

Key Takeaways

  • Custody Concept: The term "custody" is not used in the laws of England and Wales.
    The focus is on parental responsibility, which involves making important decisions for the child's life, including where they live and who cares for them.
  • Parental Responsibility: The child's birth mother always has parental responsibility.
    If married, the father also has parental responsibility; however, rules differ for unmarried parents.
  • Decision-Making: Divorcing parents decide childcare arrangements based on the children's best interests.
  • A Parenting Plan, though not legally binding, outlines intentions for childcare and can cover issues like schooling, living arrangements, financial support, and health management.
  • Living Arrangements: Children may continue living in the family home, with one parent or moving between two homes based on agreements.
    Parents should mutually agree on involvement in the children's lives; otherwise, a family solicitor can provide guidance.
  • Court Involvement: Contrary to common belief, not all divorcing parents need to go to court. If an agreement is reached, no formal paperwork is necessary. The court intervenes only when parents cannot agree.
  • Dispute Resolution: If parents can't decide, a family solicitor can offer advice.
    Mediation is a common step to resolve disputes quickly and reduce stress.
    Court involvement, through a Child Arrangements Order, is considered if mediation fails.
  • Decision Factors for Court: The court prioritizes the child's best interests.
    Factors include the child's well-being, wishes (if mature enough), special needs, age, background, potential harm, and each parent's ability to meet emotional and physical needs.
  • Full Care Considerations: Courts prefer joint custody for maintaining relationships with both parents.
  • Full care may be considered if a parent is deemed unfit, involved in abuse or neglect, has a criminal record, or if the child expresses a preference.

 

Simpson Millar can provide legal advice for ‘custody’ matters

Our legal team which has expert family solicitors can help you with all aspects of UK Family Law, Divorce, Separation and Matters related Child Law too. We can advise you legally, whether you are married, living together and/or in a civil partnership. 

We live by our values and we are empathetic, provide honest and direct advice and will try our best to get you the results you want. Don't hesitate to get in touch with one of our legal experts to help you better understand how childcare matters work during a divorce or separation.

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References

Gov.UK (2011). Parental rights and responsibilities. [online] GOV.UK. Available at: https://www.gov.uk/parental-rights-responsibilities.

Legislation.gov.uk. (2022). Custody of Children Act 1891. [online] Available at: https://www.legislation.gov.uk/ukpga/Vict/54-55/3.

Chris Fairhurst Profile Picture

Chris Fairhurst

Partner, Family Law and Divorce Solicitor

Areas of Expertise:
Family Law

Chris is a Partner and Family Law Solicitor based in Northwest England, with more than 25 years’ experience in this area of law.

His areas of expertise include, but not limited to, dealing with complex financial arrangements in separation and divorce and relationship breakdowns for clients in England, Wales and living overseas often involving high value cases including multiple assets often involving pension funds of several million pounds.

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