Understanding Child Custody in England after Divorce

Who gets the children in a divorce is still typically referred to as ‘child custody’ however, in modern legal terms “a lives with Child Arrangements Order” refers to the residence of a child and a “spend times with Child Arrangements Order” refers to a child having ‘contact’ with the other parent.

Another relevant term under UK family law that has implications for child residence, is parental responsibility. While this is automatically conferred on mothers, fathers are also deemed to have parental responsibility where:

• they were married to the mother at the time
• their name is on the birth certificate
• their responsibility has been registered with the court

Where parental responsibility exists, both parents technically have the right for the children to live with them (depending on other factors which we’ll come onto). Regardless of living arrangements, if both parents have parental responsibility for a child then they shall each have an equal say in decisions affecting the child’s upbringing.

The key is both parents coming to an agreement, which is in the children’s best interests, as to where they will live and how they will spend their time going forward.

Different types of custody

Rather than ‘joint custody’ or ‘sole custody’, you’ll now hear family solicitors and courts talking about ‘childcare arrangements’ which will determine with whom the children shall live and how much time will be spent with one parent. An equal shared care arrangement is often the preferred outcome, which will record that the children live equally with both parents and both being responsible for the children’s day to day upbringing.

While this sounds like a fair outcome and can work well for some families, it isn’t always practical, especially if one parent moves much further away from where the children go to school, for example.

In cases where an equal child care arrangement isn’t suitable, the children will usually be recorded as “living with” one parent and “spending time” with the other. There are various patterns of contact which can be agreed and the defined arrangements will depend upon the circumstances of each individual case.

Factors Affecting Custody Decisions in England

Parenting plan

The ideal scenario is that both parents and the children (if appropriate) are able to come up with a childcare arrangement that is in the best interests of all involved. Creating this agreement, sometimes known as a ‘parenting plan’, is something we can help you with at Alsters Kelley. No matter how amicable, it’s always worth making sure your agreement is legally binding to protect everyone concerned for the long term.

Mediation

If coming to a childcare arrangement isn’t possible, a good port of call is mediation – and even if you end up going down the court route later, the courts will expect all other means of resolution to have been explored first.

Child Arrangement Order

If parents are unable to agree upon the suitable arrangements moving forward, you can apply to the court for a Child Arrangements Order.

In making this decision, a court will consider a variety of factors surrounding the child’s well-being and the ability of both parents to be able to provide care. These include looking at who is the main caregiver, the ability of parents to provide a safe, loving and caring environment and the relationships involved.

They will also take into account issues such as whether there is any history of domestic violence, substance abuse, mental illness, or any other factors which might impact the well-being of a child. Practical issues such as distance to/from the child’s school and social network may also be taken into account.

The children’s views are also incredibly important in childcare arrangements and courts will take these into account where the children are old enough and it’s appropriate to do so.

How can Alsters Kelley help me?

Everyone wants to avoid lengthy and upsetting child custody battles and it’s important to keep the best interests of the child at the forefront of discussions and decision-making. Often that can mean working together on a childcare arrangement that all parties, including the children, agree on.

Whether your divorce is amicable or acrimonious, it’s always worth getting a specialist solicitor to help you navigate that process to create an agreement that is legally binding and that will protect the interests of all involved for the long term.

There can be a lot to think about, and we appreciate that the unknown costs can be somewhat daunting. Therefore, we offer an initial fixed fee meeting for £300 plus VAT (20%). During the initial meeting, you will meet with one of our experienced and understanding family lawyers who will listen to your situation and discuss your concerns in detail with you, providing tailored advice specific to your circumstances. Alternatively, if you would prefer to discuss your options generally, before proceeding with a fixed fee meeting, we offer a free ‘options’ call lasting up to 30 minutes.

As well as being ‘well-regarded’ in the Legal 500, our family lawyers are members of Resolution, a community of family justice professionals who work with families and individuals with the aim of producing better outcomes for all concerned.

For excellent and pragmatic advice, please contact Shelley, Solicitor and Head of Family Law by emailing shelley.deworringham@alsterskelley.com, or by calling 01926 356000.