Divorce can be an emotional and unsettling time for any family. When children are involved, decisions about where they will live, how much time they will spend with each parent, and how their needs will be met can quickly become the most sensitive and important issues to resolve.
Reaching clear and workable custody arrangements helps to provide children with stability and security at a time of significant change. It also helps parents establish healthy boundaries and communication patterns for the future.
What Does Custody Mean?
The term “custody” is not used in England and Wales, though it remains widely understood. Legally, decisions about children following separation are referred to as “child arrangements”. These arrangements set out:
- Where a child lives (residence)
- When and how they spend time with each parent (contact)
- How key decisions about their upbringing are made
The focus of the law is not on parental rights, but on what is in the child’s best interests.
How Are Custody Arrangements Decided?
Many parents are able to agree arrangements between themselves without court involvement. This might be achieved through open communication, negotiation via solicitors, or with the help of family mediation.
If an agreement cannot be reached, an application can be made to the Family Court for a Child Arrangements Order. The court will then decide what arrangements are in the child’s best interests, based on evidence and the specific circumstances of the case.
What Does the Court Consider?
The court’s primary concern is always the child’s welfare. It uses the welfare checklist set out in the Children Act 1989, which includes:
- The wishes and feelings of the child (depending on age and understanding)
- The child’s physical, emotional, and educational needs
- The likely effect of any change in circumstances
- The child’s age, sex, background, and any relevant characteristics
- Any harm the child has suffered or is at risk of suffering
- The capability of each parent to meet the child’s needs
No single factor outweighs the others, and every case is determined on its individual facts. The aim is to promote stability, consistency, and the child’s overall welfare.
Types of Arrangements
Every family is different. Some children live primarily with one parent and spend time with the other regularly. Others share their time more equally between both homes. Flexibility is key, arrangements should reflect the child’s needs, routines, and relationships, not a rigid formula.
Shared care does not necessarily mean equal time, but rather that both parents play a meaningful and active role in their child’s life.
What if Circumstances Change?
As children grow or family situations evolve, existing arrangements may need to be reviewed. Changes in work schedules, relocations, or a child’s own preferences can all prompt a reassessment.
If parents can agree on adjustments, a revised informal or formal agreement can be made. Where agreement cannot be reached, an application can be made to vary an existing order. The court will again prioritise the child’s welfare above all else.
Parental Responsibility
Parental responsibility gives parents the legal right to make decisions about a child’s health, education, and welfare. Mothers automatically have parental responsibility. Fathers do if they were married to the mother at the time of birth or are named on the birth certificate, depending on when the child was born.
Even if parents separate, both retain parental responsibility unless a court orders otherwise. Cooperation in decision-making remains essential for the child’s wellbeing.
We Can Help
Discussions about custody and child arrangements can be emotionally charged and complex. Our family law specialists can help you reach clear, fair, and sustainable arrangements, whether through negotiation, mediation, or court proceedings if necessary.
If you would like advice on child arrangements due to separation or divorce, contact us to discuss your next steps.
