Who Gets Custody of a Child in Divorce?

For most parents going through a divorce, making sure their children are looked after is the number one priority. By compromising with your ex-partner, you can both continue to share care and responsibilities for your child. 

What is Child Custody?

Child custody refers to where a child, or children, predominantly live and can also refer to the amount of time they spend with each parent. 

The parent who the child or children live with has main control over the day to day decisions concerning them; however, both parents must have a say when making important decisions about their child’s life. 

The term child custody was replaced with child residence under the Children Act 1989, and then replaced again with child arrangements. However, child custody is still a term very commonly used by many parents.

What is Parental Responsibility?

Parental Responsibility is defined as “all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to their child and property.”

It is important that when parents share parental responsibility that they work together when making important decisions, such as:

  • Which school a child should attend
  • Agreeing to medical treatments for a child 
  • Choosing, registering or changing a child’s name

If you have parental responsibility but you do not live with your child, it does not mean you have the right to spend time with them; however, your ex-partner must include you when making important decisions about their lives.

If decisions are not made together, your ex-partner has the right to take you to Court to resolve the problem. This can cause more friction between you both and it can be increasingly disruptive for the child.  

Who has Parental Responsibility? 

Parental Responsibility is conferred automatically on the mother of a child irrespective of her marital status. The father of a child will automatically have parental responsibility of a child if he was married to the child’s mother or is named as the child’s father on their birth certificate.

What is joint custody?

Joint custody is when parents share the care of a child.  This can mean that a child spends the same amount of time with each parent, or it can mean that the child spends more time with one parent than the other, but it is still an acknowledgement that the child has two homes.  

This can be achieved by a verbal agreement or a written agreement or by a Child Arrangements Order made by the Court.

Joint custody is extremely popular as it allows the child/ren to feel as though they have two fully involved parents in their lives and they get to spend quality time with each parent; albeit, this is not usually an exactly equal division of time.

What is full custody?

Full custody is granted when a Court makes a Child Arrangements Order for a child to live with one parent, but this does not mean that the child will not get to see the other parent as the court would usually also make a Child Arrangements Order for the child to spend time with the other parent, provided it was safe for the child to do so.

How does child custody and parental access work?

Oftentimes, the parent who has sole custody of a child may question what reasonable parental access is for their ex-partner. It is usually in the best interest of the child to have contact with both parents, and the law provides that a child has a right to have a relationship with both parents and should spend time with both parents, provided it is safe for them to do so. 

However, there are no set guidelines for reasonable access as each family is unique, and reasonable access for parents depends on individual circumstances and a child’s individual needs and wishes. 

Some visitation rights include the following:

  • The right to visit at a designated time, whether this be in the daytime or overnight.
  • The right to indirect contact, such as speaking to the child on the telephone or facetime.
  • The right to enjoy activities with the child, such as foreign holidays.
  • The right to be free from the other parents control during visitations.
  • The right to spend the entire allocated time with the child without any threats of infringement.

How do courts decide who gets custody of a child?

The child’s welfare is paramount and the Court will make a decision based on what it thinks is best for the child, not what is best for you or your ex-partner. 

In order to reach a decision, the Court will consider the welfare checklist:

  • Your child’s physical, emotional and educational needs
  • The likely effect on your child due to any change of their circumstances 
  • The wishes and feelings of your child, in light of their age
  • Your child’s age, gender, background and any characteristics the Court considers relevant
  • Any harm your child has suffered or is at risk of suffering 
  • How capable each parent is of meeting the child’s needs
  • What, if any, orders may be necessary 

Every child custody case is different due to the nature of families having their own quirks and needs. Each factor will be looked at carefully in light of your child’s circumstances and needs. 

A Family Law Solicitor will support you throughout the process of deciding child custody and advise you of your best options, with the child’s best interests always at the forefront.

What is the most common child custody arrangement in the UK?

Joint custody is becoming increasingly common in the UK, as it gives each parent the same or very similar time spent caring for and seeing their child. Joint custody is often preferred by Courts as it allows a child to have residential access to both parents and gives both parents the opportunity to be involved in their child’s life. 

However, due to the historic nature of child custody, sole custody is still extremely common. Usually, the legal and residential custody will fall on the mother, with the father having access rights at specific times. 

Sole residency does also fall onto the father, and it makes up around 20% of UK custody disputes.  

Disputes involving child arrangements can be supported by an experienced family law solicitor who can help with mediation and guidance in the right direction for all parties. You can speak to our team at VM Family Law for more information on how a legal representative can support you.

Can you improve your chances of getting child custody?

The relationship with your child will play a huge role in the chances of you receiving sole or joint custody. If you spent a lot of time with your child during the relationship with your partner, then the judge will likely envision you spending time with them after your relationship split provided there is no risk of harm to the child.

When dealing with your ex-partner, you should show flexibility with their schedule and be respectful when proceeding with child arrangements. Try to be calm, don’t argue and try to come to an agreement on your own.

If it is not possible to agree the arrangements for your child directly with your ex partner, then you may wish to contact a mediator who can facilitate discussions between you, or you may wish to seek specialist legal advice.  You should always seek advice from a family lawyer before proceeding with a court application.

When you’re filing for custody, it is essential to have a stable and safe environment for your child. It’s crucial that your child is not moving from house to house, they have healthy and filling meals and live in a safe and clean house and you can meet all their needs.

Our goal is to help our clients solve their family legal matters as smoothly as possible.

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