What is child custody in England & Wales?

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 “residence” or “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 custody 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.

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 Residency

Where a sole residency 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 residency 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 residency 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) Residency

Joint residency historically was not the norm in England and Wales, but it is growing in popularity. Joint residency 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 residency 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 residency 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 custody arrangement is best for a child?

The best type of custody 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 arrangement order.

How do I formally apply for custody of a child?

You need to apply to the Court for a Child Arrangement Order. This is a Court Order stating the living and contact arrangements for a child. Prior to April 2014, Child Arrangement Orders were called Residence and Contact Orders.

Upon making a Child Arrangements Order the Order will outline the specific rights and responsibilities of each parent, such as who the child will live with, when each parent will spend time with their child/children, and how the parents will communicate and resolve disputes related to the child.

A Child Arrangements Order expires when the young person reaches the age of 18. You can only apply for a Child Arrangements Order for a child aged between 16-18 only in exceptional circumstances.

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 imposed and no assumptions made. 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 custody’, 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.

Frequently asked questions about child custody and children 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.

What rights do other family members have to see a child?

Grandparents and other close family members do not have an automatic right to see a child. Family Courts however do recognise the important role that relatives (particularly grandparents) play in a child’s life, and it is unusual for a Court to prevent grandparents from making an application for contact to a child under the Children’s Act 1989, unless there is evidence that it would not be in the child’s best interests.

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 Court 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.

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.

Do I have to pay child maintenance if it’s 50 50 custody UK?

If a child spends time with both parents during a year, this will reduce the amount of child maintenance that is payable. The reduction depends on the number of nights the child spends with the other parent and the reductions are as follows:

Between 52 and 103 nights: child maintenance is reduced by 1/7th for each child.

Between 104 and 155 nights: child maintenance is reduced by 2/7th for each child.

Between 156 and 174 nights: child maintenance is reduced by 3/7th for each child.

From 175 nights or more nights: child maintenance is reduced by 50%, plus an extra £7 a week reduction for each child.

Who gets child benefit in shared custody (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 custody (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 other help is available to me?