How is Child Custody Decided in Divorce?

child maintenance
How is Child Custody Decided in Divorce?

What are your child custody rights in the UK?

If you have parental responsibility, you inherently possess the authority to make housing decisions for your child or children. Typically, both mothers and fathers hold parental responsibility. For mothers, it’s automatically granted as they are consistently listed on the birth certificate. Fathers, on the other hand, acquire it through various means:

  • Being married to the child’s mother at the time of birth.
  • Being named on the child’s birth certificate.
  • Registering parental responsibility with the court via an agreement.
  • Receiving a court order granting parental responsibility.

When both parents have parental responsibility, neither holds exclusive rights for the child to reside with them; rather, they share this responsibility equally.

What are the different types of custody?

The court possesses broad authority in determining the living arrangements for the child(ren) in cases of unresolved disputes, leading to varied orders depending on each case.

While you may be familiar with terms like “contact,” “sole custody,” and “joint custody,” they are now encompassed within what’s known as a “child arrangements order.”

A Child Arrangements Order encompasses several aspects, including:

  • Residence arrangements: determining where the child lives and with whom.
  • Contact arrangements: specifying the frequency, duration, and extent of contact between the child(ren) and the non-resident parent.
  • Addressing specific disputes: resolving issues such as schooling preferences or travel permissions, including holiday arrangements.
  • Imposing prohibited steps: Establishing actions a parent is restricted from taking with the child(ren), such as specific visitation locations or international travel limitations.

Does custody have to be decided by a court?

It’s advisable for parents to mutually agree on the living arrangements for the child(ren). This approach offers flexibility and can cater to each parent’s individual circumstances. If an agreement is reached, documenting the details in a written form, such as a solicitor’s letter, is recommended. However, it’s crucial to understand that such agreements are not legally binding or enforceable by law.


If reaching an agreement with your ex proves challenging, the next step is typically attempting mediation. While there are situations, such as a history of domestic abuse, where mediation may not be feasible, courts increasingly emphasise the exploration of alternative dispute resolution methods before resorting to litigation.

Mediation entails a trained and impartial mediator listening to both parents’ perspectives without bias, aiming to facilitate an agreement in the best interests of the child(ren). Their role is to minimise personal emotions and prevent the escalation of hostility. Although mediation isn’t free, individuals with low incomes may qualify for financial assistance with the costs. Otherwise, the fees typically amount to around £140 for the initial session and subsequent meetings per person per hour.

If mediation fails to yield an agreement, the next recourse is applying for a court order.

How is custody decided by the court?

The primary consideration of the court in family proceedings revolves around determining “what is in the best interests of the child/children?” This principle is guided by the Welfare Checklist, which comprises seven crucial criteria:

  1. The ascertainable wishes and feelings of the child concerned, taking into account their age and level of understanding.
  2. The child’s physical, emotional, and educational requirements.
  3. The potential impact on the child of any changes in their circumstances.
  4. The child’s age, gender, background, and any relevant characteristics considered by the court.
  5. Any harm experienced by the child or risks of harm they may face.
  6. Each parent’s ability to meet the child’s needs.
  7. The array of powers accessible to the court under the Children Act 1989 pertinent to the proceedings in question.

Additionally, the court may deem it necessary to obtain a comprehensive report regarding the child(ren)’s circumstances and proposed arrangements. This is typically conducted by the Children and Family Court Advisory and Support Service (CAFCASS), comprising specially trained officers who evaluate all aspects of the case independently from the court.

Can I get sole custody of my child?

If the other parent doesn’t consent to the child(ren) living with you, seeking sole custody would entail applying to the court for a child arrangements order. The default position is typically shared care between both parents, but in certain circumstances, this may not be feasible, especially if it would compromise the welfare of the child(ren).

How old does a child have to be to decide which parent they live with?

Legally, a child cannot determine their living arrangements until they reach the age of 16. However, if a child arrangements order is already in effect dictating their residence, this may extend beyond the age of 16, possibly up to 17 or 18.

Tips for improving your chances of getting custody

  • Be transparent and practical – assess whether you can realistically handle the majority of caregiving responsibilities, especially full custody, considering other commitments like full-time work or caregiving duties.
  • Prepare a thorough plan – anticipate and address potential queries from a CAFCASS officer or judge by detailing arrangements such as the child’s residence, school choice, and financial readiness.
  • Stay actively involved in your child’s life – if the child doesn’t reside with you full-time, maintain regular communication through phone calls or video chats. Attend their social and educational events, such as parent-teacher meetings, birthdays, or sports activities, as this demonstrates a meaningful relationship to the court.
  • Keep a record of communication and be ready to explain any missed contacts or related issues, such as tardiness during pick-ups or drop-offs.
  • Ensure a suitable living environment for your child, providing a consistent sleeping arrangement rather than temporary alternatives like sofas or blow-up mattresses.
  • Demonstrate respect towards the other parent – avoid rudeness or disrespect, especially in the presence of the child, as this behaviour could impact your custody prospects negatively.
  • Respect your child’s opinions and preferences – encourage them to express their thoughts without influencing them in any particular direction.
Avatar of DLS Solicitors by DLS Solicitors
14th May 2024
Avatar of DLS Solicitors
DLS Solicitors

Our team of professionals are based in Alderley Edge, Cheshire. We offer clear, specialist legal advice in all matters relating to Family Law, Wills, Trusts, Probate, Lasting Power of Attorney and Court of Protection.

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