In the UK, “child custody” is referred to as “child arrangement”. A “Child Arrangement Order” is a legal document issued by the court that sets where and with whom a child should live following a divorce or separation. Child Arrangement Orders are used where parents cannot agree between themselves on arrangements for their child, and they need the court to make the necessary decisions on their behalf. Child arrangements orders replaced “residence orders” and “contact orders” and will determine:
- Who your children will live with, and where
- When and how your children will see both parents and
- Who else your children will see, for example, family, friends and relatives
Historically, mothers were more likely to receive custody of their children, but the courts are now much more open to modern families in which fathers often play an equal or central role in the raising of their children. It is also important to note that courts will usually not make a court order if the child is 16 or older.
Types of child custody / child arrangement in the UK
In the UK, there are three main types of child custody (child arrangement): sole custody and 2 types of joint custody. Child Arrangement Orders do not use the term “custody”; the law refers to the different types of child living arrangements:
- Child to live with one person (sole custody)
- Child to live with two people in the same household (joint custody)
- Child to live with two people in different households (joint custody)
The child will live with one person (sole custody)
Sole custody means that a Child Arrangement Order will name just one person with whom the child is to live and will take primary responsibility for them. Sole custody is also referred to as full custody.
The child will live with two people in the same household (joint custody)
This type of joint custody means that the Child Arrangement Order will name two people who live in the same household together with whom the child will live. This type of arrangement is most used by a child’s parent and a step-parent. Both will have joint responsibility for making important decisions for the child, including their education and healthcare.
The child will live with two people in different households
This type of joint custody means that a child will live with two people who live at different addresses. The Child Arrangement Order will set out how much time the child will spend living in each household. This type of arrangement is normally suitable following divorce or separation, where the child will live with both parents in their respective households. However, it is important to note, that the amount of time that the child lives in each household may not necessarily be equal. Again, both people will have joint responsibility for making important decisions for the child, including their education and healthcare.
Who gets custody of the child in a divorce in the UK
It is normally the preference of the court for the custody of children to be shared between parents following separation (i.e., joint custody) where possible. This means both parents share the time and responsibilities associated with raising their child. Ultimately, the court’s decision regarding who a child will live with is always based on their best interests.
In recent years, UK courts have made an effort to move away from implying winners and losers in a child-related arrangement following divorce, preferring to emphasise the importance of co-parenting. As such, the court does not usually award custody to one parent or the other. This is why the terminology being used in UK family law has changed from “child custody” to “child arrangements”.
How to get sole/full custody of the child in a divorce in England and Wales
The courts may grant sole custody (i.e., the child will live with one person only) in certain circumstances. This may be the case if it can be shown that the child is at risk of physical or mental abuse or neglect from one parent. Other scenarios in which the court may decide to award full custody (i.e., name one person whom the child will live with) include where one parent:
- Has a history of substance abuse and may not be able to provide suitable care to their child
- Has a background of criminality, violence, or is in prison
- Cannot adequately provide for the needs of their child – this may be because they do not have the resources necessary to provide for the child’s basic needs (i.e., money, food, and shelter)
- Has moved away – In some cases, if a parent has made the decision to move to another country or far away from where the child currently lives, the court may award full custody to ensure consistency and continuity
- Alienates the other parent – In some cases where one parent is obviously trying to sabotage the child’s relationship with the other parent, the court may award full custody.
As explained above, the court will always consider the overall best interests of the child. This may involve requesting expert evidence or the advice of the Children and Family Court Advisory and Support Service (CAFCASS). In addition, they will consider the child’s own preferences.
To get sole custody of your child, it is important to seek the expertise of a family law solicitor. The process of applying for sole custody is as follows:
- Attend a Mediation Information and Assessment Meeting (MIAM) with your former partner (unless an exemption applies) – This is to determine if your matter can be resolved through mediation and without the help of the court.
- Apply to the court by completing Form C100 confirming attendance at a MIAM (or the reasons why the MIAM could not go ahead). Your form should be submitted to your local family court, and a court fee of £232 paid.
- First Hearing Dispute Resolution Appointment (FHDRA) – The aim of the FHDRA is to identify the issues being disputed and try to resolve them as quickly and inexpensively as possible.
- Dispute Resolution Appointment (DRA) – If the matter cannot be resolved at the FHDRA, a DRA may be required. A DRA is usually necessary if CAFCASS have been asked to produce a report to assist the court in making a decision on custody arrangements.
- Final hearing – Once all evidence has been prepared and submitted to the court, a final hearing will take place. The judge will consider all the evidence and make a decision on who will have custody and write this up in a Child Arrangement Order.