Child custody vs. child arrangements: what's the difference?

If you're separating from your partner and have children together, you've probably heard people talk about "custody" battles and "custody rights."

However, if you look into the legal process in England and Wales, you might be surprised to find that the courts no longer use this term. Instead, the legal system now refers to "child arrangements"

This guide will explain everything you need to know in plain English.

What is the difference between "custody" and "child arrangements"?

The term "custody" is an old legal concept that was used to describe where a child would live after parents separated. It was often linked with ideas of ownership and control - one parent would typically "win" custody while the other might get "visitation rights." This created a winner-takes-all mentality that could make family breakdowns even more contentious.

"Child arrangements," on the other hand, is the modern legal term used in England and Wales. Rather than focusing on parental rights or who "has" the children, child arrangements orders focus on what's best for the child.

These orders simply set out practical arrangements: where the child will live, when they'll spend time with each parent, and how major decisions about their upbringing will be made. The emphasis has shifted from parental ownership to parenting responsibility.

Why the language changed

The shift in terminology wasn't just about being politically correct, it reflected a fundamental change in how the law views children and families. The old custody system often created an adversarial atmosphere in which parents fought each other to "win" custody of their children. This approach could be damaging for everyone involved, especially the children caught in the middle.

The Children Act 1989 introduced the concept of "parental responsibility," recognising that both parents should remain involved in their children's lives wherever possible. However, courts still used terms like "residence" and "contact" which maintained some of the old hierarchies.

The most significant change came in 2014 with the Children and Families Act. This legislation deliberately avoided any language that suggested children were possessions to be divided. The new terminology recognises that children benefit from maintaining relationships with both parents in most circumstances, and that arrangements should be collaborative rather than competitive wherever possible.

What the law actually refers to today

Today, when you go to Court regarding disputes about children, you'll be applying for a "Child Arrangements Order." This is a single type of order that can cover two main aspects:

• Living arrangements: This determines where and with whom your child will live. It might specify that they live primarily with one parent, or it could set out a shared living arrangement where the child spends significant time in both homes.
• Spending time with arrangements: This sets out when the child will spend time with the other parent (or both parents, if they live primarily with another family member). This replaces what used to be called "contact" or "visitation."

The Court may also make decisions about "specific issues" (particular decisions about a child's upbringing) or "prohibited steps" (preventing a parent from taking certain actions), but these fall under separate types of order.

Does this affect my legal rights as a parent?

The change in terminology hasn't altered your fundamental legal rights as a parent, but it has changed how those rights are framed and exercised.

What has changed is the court's approach. Rather than thinking in terms of one parent having control and the other having limited rights, the system now encourages both parents to remain actively involved. Courts start from the presumption that children benefit from involvement with both parents, unless there are welfare concerns.

Residence and contact

While "residence" and "contact" are no longer used in new court orders, you might still hear these terms, particularly from older generations or in discussions about cases before 2014. Understanding them can help you navigate conversations with family members or understand older legal documents.

"Residence" referred to which parent the child lived with most of the time. A "residence order" would grant one parent (or sometimes both, in cases of shared residence) the right to have the child live with them.

"Contact" described the arrangements for the child to see or communicate with the non-resident parent. Contact could be "direct" (face-to-face time) or "indirect" (phone calls, letters, or video chats).

These concepts still exist, they're just wrapped up in the single term "child arrangements" now. If someone talks about "having residence" or "getting contact," they're referring to what would now be covered by a child arrangements order.

Using the right terminology in legal applications

When you're filling out court forms, it's important to use the correct modern terminology. This demonstrates that you understand the current legal framework and helps your application to be taken seriously.

Use "child arrangements order" rather than "custody order."

Instead of saying you want "custody" or "residence," explain what living arrangements you're proposing for your child.

Rather than asking for "contact" or "visitation," describe the time you want your child to spend with you or the other parent.

Focus on your child's needs and welfare rather than your rights. The court wants to hear about what's best for your child, not about winning or losing.

That said, don't worry too much if you accidentally use old-fashioned terms in conversation, most legal professionals will understand what you mean. However, in formal documents and applications, the modern language is expected.

When to seek legal help

While many parents successfully negotiate child arrangements between themselves, there are situations where professional legal advice becomes essential:

• Communication has broken down: If you and your ex-partner can't have civil conversations about your children, a solicitor can help facilitate negotiations or represent you in Court proceedings.
• Safety concerns exist: If there are allegations of domestic abuse, substance misuse, or concerns about a child's safety, you need legal advice immediately to ensure appropriate safeguards are in place.
• International elements: If one parent wants to relocate abroad with the children or there's a risk of international child abduction, specialist legal help is crucial.
• Complex situations: Cases involving special educational needs, serious health conditions, or disputes with other family members seeking contact require expert guidance.
• Court proceedings begin: If your ex-partner has issued Court proceedings or you need to make a Court application, instructing a solicitor who specialises in family law will help protect your interests and ensure the best outcome for your children.

Many people also find that even a one-off consultation with a family law solicitor can clarify their position and help them negotiate more effectively with their ex-partner, even if they don't need ongoing representation.

The shift from "custody" to "child arrangements" represents more than just a change in vocabulary. It reflects a more enlightened approach to family separation that prioritises children's welfare over parental conflict.

Understanding this terminology and the philosophy behind it can help you approach your own situation more constructively and navigate the legal system more effectively. Remember, the goal isn't to win or lose, but to create arrangements that allow your children to thrive despite the changes in your family structure.