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Who gets ‘custody’ of children on separation or divorce?
Separation & Divorce
The short answer is no one gets ‘custody’ anymore. The reason for this is that the terminology of custody (though commonly used in the media) is an outdated term which is no longer part of the legal language used in family law. In more recent years the Court could, if an application were made, make Orders known as Residence Orders (determining with whom the child should live) and Contact Orders (when and how the child would spend time with the other parent) however those terms are also now out of date. The current position reflects a shift away from framing one parent as having priority over the over, which can often lead to conflict, and towards arrangements that prioritize the child’s best interests and maintain a balanced role for both parents.
The current position – Child Arrangement Orders
The position now is that, if separated parents are unable to reach an agreement about their child’s arrangements then the Court have the power to make Child Arrangements Orders. These Orders can determine where the child lives and with whom, when and how they will spend time with each parent and how holidays and special occasions are shared.
Who decides?
In most cases, separating parents are able to agree how the children’s time should be shared between them without having to seek support. Often the arrangements mean that the child will have a main base with one parent and spend frequent time with the other or could mean that the child may live between two homes on a more equal basis, in an arrangement that works best for the child.
There are no fixed rules as to how or what the arrangements should be. The key consideration is always what works best for the children and what is in their best interests. A stable and regular routine is generally considered beneficial to children and is encouraged, giving them certainty and security as to when they will be seeing each parent. Early communication is essential and encouraged — for example, giving plenty of notice for holiday allows for proper discussion and planning. Last-minute requests for a holiday add pressure and often lead to increased acrimony. Some parents find it helpful to set out a detailed schedule or rota to avoid misunderstandings and reduce potential stress.
Despite best efforts, there will be occasions when agreement proves impossible. Fortunately, there are helpful resources to support and advise separating parents who are faced with these decisions, including:
- CAFCASS (Children and Family Court Advisory and Support Service)
- Parenting plans
- Guides from Advice Now on child arrangements
The CAFCASS website provides practical, child-focused guidance for families- not just those using the Court system.
Mediation/Legal support
Many families benefit from support during discussions about child arrangements and may seek legal advice or assistance from a mediator.
Legal advice can be helpful to identify the key issues and options, giving you clarity on what’s realistic, and explore options if an agreement can’t be reached. Mediation is also a powerful tool which provides an invaluable opportunity to sit together, face to face or virtually, and discuss between you what would work for your children and your family -with the aid of a neutral, trained mediator to guide and facilitate those discussions and arrangements. Mediation can be set up in a variety of ways. One option is Child-Inclusive Mediation which gives children (generally aged 10 and over) the chance to privately share their views with a specially trained mediator. With the child’s consent, these views are shared with the parents to help inform their decisions. This is not for the children to choose sides or make decisions but simply to ensure their voices are heard in an age-appropriate way
What if you really can’t agree?
It remains the case that there are some cases, where despite attempts, parents still cannot agree. In those circumstances an Arbitrator could be appointed to determine the dispute between the parties and make a binding decision, or an application can be made to Court for a determination and Order.
Before applying to Court, parents must show that they’ve tried at least one form of non-court dispute resolution, such as mediation, unless there’s a good reason not to (for example, in cases where there is ongoing domestic violence).
Arbitration is a form of non-Court dispute resolution where both parents are bound by the decisions of a private independent family law expert (this differs from other non-Court dispute resolution processes such as mediation or early neutral evaluation). Arbitration is typically faster and more flexible than court proceedings, and allows you to choose who will decide the case and how the process will be structured (Family Arbitrators would be specialists in family law- such as senior solicitors, barristers or even former Judges).
How are decisions made?
Whether in court or arbitration, the focus is always on the child’s best interests not what either parent wants or feels entitled to. When considering the child’s best interests and individual circumstances of the case the “welfare checklist” is taken into account, which is a series of factors to consider laid out in the Children Act 1989 including wishes and feelings of the children, how capable each parent is of meeting needs, effect of any proposed change etc.
The general presumption is that it’s in the child’s best interests to maintain a meaningful relationship with both parents, provided it is safe to do so. If there are no genuine welfare concerns, arrangements should support this relationship.
Sometimes in litigation there is a need for further consideration into the particular circumstances – this could be either an independent social worker (so an expert with a wealth of experience, privately appointed to provide expert insight into the family’s circumstances) or a CAFCASS officer who conduct safeguarding checks which are designed to assist the Court in understanding whether there are any safeguarding concerns (e.g. domestic abuse or other such concerns) and report on whether they feel there is a need for any further involvement by them by a more detailed report. If a full report is ordered this will consider the circumstances, what each parent is saying and what the wishes and feelings of the child is -in light of their age. For older children, CAFCASS may meet with them in a child-friendly setting to understand their views. For younger children, creative tools like drawing or play may help express feelings. Importantly, children are not asked to make decisions but their views help the CAFCASS officer in understanding one of the factors to be considered before any final decisions about arrangements are made.
The views of younger children, considered in light of their age and understanding, will be a matter for consideration. As children grow older, their views will become increasingly important and carry more weight. By teenage years, the Court would usually have to have a compelling reason as to make an order which conflicts with what the child wants.
However, things aren’t always straightforward and on occasions, what the child wants and what is in their best interests might be two different things and difficult to unravel. A child might say they don’t want contact with a parent, but this could be the result of emotional strain or influence. In very complex cases the Court/Arbitrator could require expert evidence from psychologists or family therapists before a final determination can be made. Even then, rebuilding relationships can be challenging, or even impossible and may require long-term therapeutic support.
At Purcell Solicitors we offer a range of services to suit your needs and Pauline offers expert legal advice to assist you. If you are struggling to agree on the arrangements for your children, please contact Pauline to see how we can best assist you.
Please note that this blog does not apply to those where there are significant concerns re the welfare and safety of children with the other parent -those experiencing this should take legal advice before finalising any arrangements for the children.
Disclaimer: Please note that this page is for guidance only and does not replace legal advice. It is correct with the law at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation – contact us for dedicated help for you.
