What is child custody?
English law no longer uses the term “child custody” however many people still refer to it by this name. Child custody is the old term for where and who a child will live with and the arrangements for that child following a separation, divorce or dissolution of civil partnership. The modern term used today for child custody is “child arrangements” which is less possessive and a more neutral.
The parent who has the child live with them most of the time is called the resident parent and the other parent is called the non-resident parent. When a child spends equal amounts of time with each parent, this arrangement is known as ‘shared care’ of the child.
Is Child Custody the same as Parental Responsibility?
Custody (child arrangements) is not the same as Parental Responsibility.
Parental responsibility is a term that means you have legal rights and duties relating to your child’s upbringing. It does not mean you have a right to spend time with your child (if you don’t live with them). You can have Parental Responsibility without having custody of your child.
Parental Responsibility is shared and neither parent has “more” parental responsibility than the other as they both have an equal say in the major decisions affecting a child’s life. Parental Responsibility means the other parent must include you when making important decisions about the child’s life on issues such as:
- where they go to school
- how to discipline them
- agreeing to their medical treatment
- choosing, registering, or changing their names
- looking after the child’s property.
All mothers automatically have Parental Responsibility. A father usually does if he’s either married to the child’s mother or listed on the birth certificate.
What rights does a father have?
A father with Parental Responsibility will have the same legal rights and responsibilities in respect of a child as the mother.
In relation to a child’s education a non-resident father has the right to speak to their child’s school, receive information about the child and be a part of the education process. It is common practice that the school’s first point of contact will be the resident parent. A father is also entitled to see the child’s school records.
Does a Court have to decide where and who a child will live with?
Absolutely not. If parents can decide this between themselves there is no need for any Court involvement.
Child arrangements are a necessary part of everyday life following a separation or divorce. They are a way of keeping a child safe and secure at a difficult time for them. Both parents have an equal say in how the children should be brought up and how much time each parent should spend with them. Accordingly, parents are encouraged to decide together where a child will live, with whom and how often the other parent will see the child.
How can we record child arrangements when we separate?
There are various ways to record the arrangements for children when parents’ end their relationship. Include the agreed arrangements in a Parenting Plan. A plan provides a record of the agreement that both parents can refer back to. There are various online parenting plan tools and apps such as on the CAFCASS website which can be shared with the other parent so you can both make changes to it together.
Alternatively, you could record the terms of the agreed child arrangements in a Separation Agreement.
If you attend mediation, the agreed child arrangements can be included in the Memorandum of Understanding. This is issued by the mediator at the conclusion of your mediation and will contain a summary of everything that you and your ex-partner agreed upon.
Do divorced parents get 50/50 care of their children in England and Wales?
Section 1 of the Children Act 1989 includes a presumption that there should be parental involvement in a child’s life. The involvement however does not automatically equate to a principle of equal time with each parent. Whether or not a child spends equal time with each parent depends on the facts of each case, and the child’s best interests.
What are the usual living arrangements for children?
There is no “one size fits all” arrangement as each family is unique. The traditional every-other-weekend child custody arrangement is slowly disappearing and is being replaced by modern co-parenting approaches. The options for child living arrangements are as follows:
Sole care
Where a sole care arrangement is in place, a child would primarily live with one parent, and have contact to the other parent at specified times which may include overnight stays.
Some argue the benefits of sole care is that it provides a child with greater stability and emotional security (especially younger children). It is also sometimes the only option when one parent lives out of the area or has a work schedule that does not allow shared parenting responsibilities.
The disadvantages of sole care are that one parent misses out on many of the important moments in a child’s life, making a close bond with the non-resident parent more difficult.
Joint (or shared) care
Joint care historically was not the norm in England and Wales, but it is growing in popularity. Joint care means a child splits his time between both parents. This does not necessarily mean that a child will spend equal time (50/50) with both parents; it simply means a child will live with each parent at their houses part of the time.
Joint care is the arrangement preferred by the courts as it really does allow a child to have the best of both worlds, allowing them to spend and share a good amount of residential time with both parents.
There is a growing shift towards 50/50 parenting agreements which mean that a child gets to see both parents equally. It also reflects the modern world where often both parents work outside the home and fathers wish to take a more active role in childcare.
The disadvantages of joint care can be practicality as a child will effectively be moving between two homes and this can cause practical difficulties such as making sure they have their school uniform or homework in the right house at the right time. With good planning, communication and sensible co-parenting, these issues can normally be overcome.
Birdnest Parenting
This is a modern arrangement that is gaining favour especially during the cost-of-living crisis where parents are finding it difficult to create two permanent homes due to financial constraints. Birdnesting is a type of co-parenting arrangement whereby divorced or separated parents keep the main marital family home and the child(ren) reside there 100% of the time. The divorcing couple then rents or buys a smaller temporary one-bedroom apartment or other additional space for the two of them to live in when it’s not their parenting time.
In practice it works as follows:
Each parent spends time in the family home with the child, whilst the other parent lives in the rented space until it’s their parenting time. The pattern continues with the child(ren) always remaining in the marital home and each parent rotating in and out of the family home during their parenting time. The arrangement usually comes to an end when child(ren) are old enough to leave the family home, and the family home can be sold.
The benefits of bird’s nest parenting are that the children do not have to deal with the upset or stress of moving to a new home or moving between homes often. It puts the emphasis on the parents to put the needs of the child first and to cooperate and co-parent effectively.
The disadvantages of bird’s nest parenting are that it puts a high financial and sometimes emotional burden on parents who may have to both run two homes and maintain a high level of contact with their ex-partner.
Flexible Arrangements
A flexible arrangement for child custody is exactly that. It is where separated parents co-parent a child(ren) with a completely or (almost completely) flexible schedule, shifting residency and care arrangements depending on work schedules, school schedules and day to day activities.
The benefit of a flexible arrangement is that it can meet everyone’s needs due to its flexibility. This means that parents who work in jobs with changing shift patterns or who travel often for work can adapt schedules to work around the child. These types of arrangements require a great deal of planning and cooperation between both parents.
Which arrangement is best for a child?
The best type of arrangement is the one that is child centred and works best for the child(ren) and your family.
What happens if parents cannot reach an agreement about where a child should live?
If parents cannot agree between themselves where the child should live, there are 2 main options:
- Negotiation with the help of a legal service professional such as us or mediation. As specialists in divorce and family law with backgrounds as Solicitors, Mediators and Collaborative Lawyers we offer couples focused approached solutions and services to meet your objectives.
- Apply to Court for a Child Arrangements Order.
What is a Child Arrangements Order?
A Child Arrangements Order is a court order that specifies where a child will live, who the child will have contact with, and how long they will spend time with each parent. It can also set out other types of contact such as through phone calls, video calls, cards and letters etc.
This order is used in cases where parents are unable to agree on arrangements for their child following a separation or divorce. This order replaces previous terms like ‘residence orders’ and ‘contact orders‘.
Does a mother have more chance of getting ‘custody’ than a father?
No. Courts make their decision purely on what they see as being in the best interests of the child with no bias. Decisions are made only on what is in the best interests of the child.
How does a Court decide a child’s arrangements?
When making decisions about ‘child arrangements’, the Family Court refers to a Welfare Checklist, focusing on matters such as:
- The wishes and feelings of the child, (whilst being sure to consider their level of understanding and their age)
- The educational, emotional, and physical needs of the child
- How the circumstance changes might affect the child
- If the child has suffered harm or is at risk of experiencing harm.
- The background of the child, including sex, age, or any other characteristics relevant to the situation
- To what extent the parents are able to meet the child’s physical and emotional needs
- The range of powers available under the Children Act
The Court will decide based on the best interests of the child and the child’s welfare and will consider any circumstances that may put them at risk of harm.
What is a Live With Order?
A Live With order is a legal arrangement that settles a child’s living arrangements. It determines which parent the child will reside with, and is responsible for their day-to-day care. This order grants the ability to a parent to take their child out of the country on holiday for up to 28 days at a time without having to seek permission from the other parent.
How long does a Child Arrangements Order last?
A Child Arrangements Order usually lasts until a child reaches 16 years of age unless the order specifies otherwise. In exceptional circumstances, the order may be extended to last until the child is 18 years old. These may include a risk of harm, abuse, or a vulnerable child.
Any extension of a Child Arrangements Order beyond 16 must be in the best interest of the child. Either parent can apply to vary a Child Arrangements order before it expires if the arrangements are no longer working or if there are significant changes relating to the child.
Frequently asked questions about child arrangements
How much does domestic abuse affect the decision of the Court?
Domestic abuse can significantly impact the outcome of child arrangement proceedings. The courts will always make a decision based on the best interests of the child, and they will consider how abuse will impact the child.
If domestic violence within the relationship is proven to be a concern, the offending parent will need to show that they understand the impact of their past behaviour. They will also be required to demonstrate the steps they have taken to ensure this will never happen again.
At what age can a child decide which parent they want to live with?
A Court may begin to take into account a child’s wishes when they reach the age of 12 or 13, sometimes younger, depending on the situation and the child’s maturity and level of understanding of the situation.
When a child reaches the age of 16, they can decide where they want to live unless there is already a Residence Order or Child Arrangement Order specifying living arrangements which lasts until a young person is 18.
Can a mother move a child away from the father?
There is no legal requirement to obtain the other parent’s consent to move a child anywhere within England and Wales, provided you have Parental Responsibility. However, by unilaterally exercising your Parental Responsibility you could be creating difficulties for yourself, and it is not an approach we would recommend.
The best approach is to try to discuss the proposed relocation with the other parent first to try to reach an agreement before any move takes place. Failure to do so may result in Court proceedings where the other parent will seek a Prohibited Steps Order to prevent the move until an investigation has taken place. A Court will always consider the welfare of the child and what is in the child’s best interests when they are looking at cases of relocation.
If a parent suddenly moves without informing the other parent at all, a Court can also issue an Order forcing the immediate return of the child, and the Police may become involved.
What happens if you breach a Child Arrangements Order?
The consequences of breaching the Order can be significant. If the order contains a warning notice, it is most likely that the aggrieved parent will apply for a Contact Enforcement Order to enforce the Child Arrangements Order. The court has the following options upon receiving a complaint:
- Enforce the existing order. Penalties for breaching can include fines, unpaid work, payment of financial compensation to the other party, or in serious cases, imprisonment.
- Vary the terms of the existing Child arrangements Order.
- Direct the parties to attend mediation.
- Order the breaching parent to attend a Planning Together for Children Programme. The aim of the programme is to put the needs and best interests of the child first.
Breaching a Child Arrangement Order may also result in the parent being held in contempt of court.
What is a warning notice on a Child Arrangements Order?
A warning notice is a formal notification that outlines the potential penalties and enforcement actions that may be taken by the court if a person fails to comply with the order. The purpose is to ensure parties take their responsibilities seriously, and follow the terms of the Child Arrangements Order. This can include fines, community service, or even imprisonment in severe cases.
Who gets custody of the child if the mother dies?
Child arrangements following the death of the mother will depend on the specific circumstances.
If the biological father has Parental Responsibility, and there is a Child Arrangements/Residence Order in place which divides residency between the parents, the father can apply to obtain an Order for the child to live with him solely.
Importantly, the law does not automatically presume or confer sole residence to the father; he must make the order application to the court.
If the mother included her wishes within her Will, those wishes would be considered by the Court when determining a new child arrangement following her death.
Who gets child benefit in shared care (residence)?
Child benefit is a state benefit that is paid to parents or guardians who are responsible for a child under the age of 16 (or under 20 if they are in full-time education or training). The benefit is designed to help with the cost of raising a child and is paid tax-free.
In shared care (residence) arrangements, both parents may be eligible for child benefits. However, only one parent can claim the benefit for each child. This means that if both parents claim for the same child, the benefit will be paid to the parent who claims first.
One solution is to agree to split the credits by each claiming every other year, as you cannot divide the claims throughout the year.
What is the Planning Together for Children programme?
The Planning Together for Children programme is an online programme is designed to promote cooperative parenting for separated or separating parents.
The purpose of the programme is to help parents understand the impact of separation and conflict on children, and focus on their child’s well-being when making parenting arrangements.
The programme is often recommended by a Family Court Adviser or ordered by the court. Parents can also attend voluntarily before their court hearing in agreement with their Cafcass officer.