Child Arrangements and Custody
Guiding you through all aspects of child arrangements
A child arrangements order – formerly known as child custody – is a complex, sensitive and emotive subject for everyone involved, but one thing should always remain paramount: the wellbeing of the child or children who are affected by a separation or divorce.
Our friendly, caring team will work closely with you to help conclude your case as quickly and efficiently as possible. We listen: we will gather all the information relating to your specific case and will use our in-depth knowledge to advise you on the most appropriate course of action.
We will also go through all your options, from the different types of custody to how you can make sure your child’s best interests remain front and centre, taking into account their needs.
Thanks to our holistic approach, we use the experience and knowledge across the entire Higgs practice. This means we are ideally placed to support you across multiple areas, providing a seamless and timely service.
What is child custody?
Child residence arrangements, or child arrangements orders, have long since replaced the term “child custody”.
The change in the law was made to enable parents to co-parent, so they can find the best way to look after their child or children, ensuring their best interests are at heart.
It also means if both parents are responsible for their child or children, both parties must consent to important decisions, such as moving overseas or changing their name.
Child custody and the law
The law relating to child custody determines who is to be responsible for their care following separation or divorce. “Custody” is an out-of-date word and we use “child arrangements” or “live with arrangements” as this better indicates where a child will live.
The Children Act 1989 introduced parental responsibility and this gives both parents whose names are on the birth certificate an equal say in how their child is brought up, including where they go to school, which religion they should follow or any decisions on healthcare.
We work closely with you to ensure you know what your legal rights are, but if you are unable to come to an agreement with your former partner, you may have to resort to court proceedings to decide.
Types of child custody arrangements
There are many types of child custody arrangements, and what those are will depend on what each family’s needs and circumstances are.
A child arrangements order will deal with both the live with and spend time with arrangements for a child.
One parent could be named as the parent the child lives with, and the other parent could be named as parent the child spends time with. However, it is also possible for both parents to be named as the parent the child lives with.
This is a flexible order which is designed to work around each family which requires one and there is no one size fits all approach.
Factors the court considers in child custody
Where parents are unable to agree about where and how their child should live, the case may have to go to the family court.
If this happens, there are several factors that the court will consider before making a decision:
Can the parent/s provide for their child? This will include looking at physical, emotional, and educational needs and if either / both parents can provide a safe home and environment that meets their child’s needs.
What the child wants: Where possible, your child’s wishes and feelings will be considered by the court in deciding what is best for them. This does not mean that your child will need to go to court, or speak to the Judge, but it does mean that if their views can be understood, this will be taken into account. However, it is important that children are not made to feel like they are the decision-makers, and this is not the only thing that a court will take into account when deciding what is best for them.
Who is the main caregiver? This is the parent who spends most of their time looking after the child and / or handling most of the parental tasks, such as taking them to school and providing meals.
The parent-child bond: The court will consider the relationship a child has with both parents. The judge may decide it would be more disruptive to live mainly with one parent than the other, or that it may impact on a child’s relationship with each parent if they were not able to spend time with each of them.
The parents’ relationship: If the court found one parent was trying to sabotage their child’s relationship with the other parent, this could affect the judge’s decision. Equally, if the parents’ relationship was amicable, or on relatively good terms, it may be easier for a court to decide that it can have confidence to order that a child should spend significant time with both of their parents.
Domestic violence: If one parent has been abusive or has a known history of domestic violence, the court has to consider if these issues are relevant to the child arrangements order and if the child, and the parent the child lives with, would be safe to spend time with that parent.
Child custody in blended families
Blended families are where a child is brought up with step-parents and perhaps step or half siblings. To be a step-parent, you must have married or entered into a civil partnership with one of the child’s biological parents. Your rights differ if you only live with the biological parent.
It is important to stress that just because you marry the child’s biological parent, you have no automatic legal rights relating to their child. However, as a step-parent you can formalise your relationship and options such as parental responsibility agreements and adoption may be available, depending on your circumstances.
Child custody with same-sex parents
Just as is the case with children born with a mother and a father, both parents in a same-sex relationship will either have, or are able to acquire parental responsibility for their child, depending on the nature of the child’s birth.
Child arrangements orders can be more complicated when same-sex relationships fail if both parents don’t have parental responsibility. The parent who carried the child, in the case of two females, will have automatic parent responsibility, but court orders can be made to allow the non-biological parent to see their child, even if they were not married, and to grant them parental responsibility if necessary.
Same-sex couples who want to start a family but are not married or in a civil partnership are strongly advised to take early legal advice before they embark on this journey to enable them to plan ahead and to avoid future problems.
The impact of domestic violence in child custody
Domestic violence or abuse can have a significant impact if the court is asked to rule on a child arrangements order. The type, severity and frequency of the violence or abuse will be considered, as well as the age and vulnerability of the child, and the impact of any arrangements for the child on the parent subjected to the violence or abuse.
The court will carefully explore the child having a meaningful relationship with both parents - but it won't make orders which would jeopardise the child, or the non-perpetrating parent's, safety. Supervised and indirect access is an option which may be used to safeguard the child while allowing contact. It's a balancing act for the court, and the perpetrating parent will need to show that they understand how their past behaviour has harmed their child's life, and the impact that this has had on the non-perpetrating parent.
Of course, domestic violence is not limited to physical assaults - it can also include emotional and psychological abuse, financial and economic abuse and coercive control.
The rights of grandparents and extended family
If grandparents cannot reach an agreement over contact with a grandchild with the parents directly, then they can make an Application to court.
If the court grants permission for the application to be made, it will then look at a host of variables including the grandparents' connection with the child and the wishes of the child concerned, if they are mature enough.
Gaining access to a beloved grandchild can be a tricky road for a grandparent, even if they have played a significant role in caring for that child up to the point of separation. Grandparents who want to obtain rights to see their grandchild - or even if they want to take on full caring responsibilities for the child - should seek the help and support of our lawyers.
International relocation
If one parents wants to relocate to another country, they must obtain consent from the other parent or all other holders of parental responsibility, preferably in writing. If an amicable agreement is not possible, then a court order must be made. Taking a child under 16 out of the country without permission of the other people who have parental responsibility for that child could be classed as child abduction.
There are all sorts of considerations the court will make if one parent wants to re-locate overseas with their child and the other parent objects to it.
Firstly, the welfare of the child is always paramount and the proposals will be scrutinised from every angle. The court will need to be satisfied that there is a genuine motivation for the move and it is not being done out of spite or to limit the child's contact with the other parent.
The court will also consider how much potential there is for continued contact with the other parent should the move go ahead. The child's wishes will also be taken in consideration, along with their physical, emotional and educational needs.
The role of mediation in child custody
We know that discussions over future arrangements can be very difficult in the immediate aftermath of a relationship breakdown, but it is vitally important proper plans are put in place for the benefit of your child or children.
It is always better to agree terms outside of court wherever possible. Our network of vastly experienced mediators can help you reach an agreement with your ex-partner that is fair and, most importantly, in the best interests of your son or daughter.
Emotional impact of child custody
Divorce or separation can have a significant emotional and psychological effect on children who often do not understand what is happening or why it is happening.
Even amicable separations can be harmful, but contested divorce where couples fight over child arrangements have been shown to significantly heighten the trauma, particularly in younger children.
It is vitally important that parents keep the best interests of their child at the forefront of their thoughts. Where possible, if there is no danger from the other parent, co-parenting is likely to be best for the child's overall mental health.
Our expert lawyers can help you separate in the best way possible.
Why choose us as your child custody lawyers
Our child custody lawyers have years of experience in helping couples decide the future arrangements for their children. We will listen to your desires, and any concerns, and advise on the best course of action. This will almost always start with mediation and discussion to try and reach an amicable solution that works for everyone, not least the innocent children caught in the middle.
We are proud of the work we have done to ensure many children enjoy meaningful relationships with both parents long after the conclusion of a marriage or partnership. Many studies show that children are better off when they have regular contact with both parents and, in the vast majority of cases, that is our goal.
FAQs
Typically, both parents will share the care of their children upon divorce and will be tasked with agreeing what that looks like in accordance with the best interests of the children.
It is never helpful to view agreeing time between parents and children as a win or lose situation, or one parent taking the children from the other. It will usually be the case that the children will want to, and should, continue to spend time with both parents, particularly to assist them in coming to terms with the painful experience of their parents separating.
Custody is not a term typically used in the UK. In law, the terms often discussed are who the children ‘live with’ and ‘spend time with’. Be that one or other or both parents, it is a matter for discussion and agreement between the parents. If the courts have to intervene, the question will always be answered with regard to what is in the best interests of the children.
Typically the non-resident parent, if there is a non-resident parent, and depending upon the respective incomes of the parents together with any financial responsibilities for any other children.
Typically this is a Child Maintenance Order, setting out financial provision for children.
There is no age at which children decide which parent they want to live with. This will always be assessed on each individual case, and will take account of the child’s age and level of understanding, and any other factors which may be informing their decision.
We don’t legally use the term ‘custody’ in this country however, a 50:50 ‘custody’ arrangement is where the child spends half of their time with each parent whether by agreement or by order of the court.
There are many reasons, the primary one being because the parents have agreed that this is best, or otherwise where the court has considered that an uneven division of time is appropriate. This can be for many reasons such as distance between homes, consideration of other siblings and children, schooling, the quality of the parenting relationship and the wishes and feelings of the child.
In addition, where the court has concerns around the behaviour of one parent or their ability to adequately meet the needs of a child, the court can conclude joint care is not appropriate.
A father with parental responsibility for his children has all of the same rights and responsibilities for them as the mother.
Meet the child arrangements and custody team
Philip Barnsley
Partner and Head of Family Law
Sioned Fitt
Senior Associate - Family Law
Karen Gray
Associate - Family Law
