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Child custody

This information only applies in England and Wales.

One of the most emotionally difficult aspects of getting divorced or separating from a long-term partner is deciding on the arrangements for the care of any children you have together. 

Understanding the law on child arrangements can help you to navigate this. Read this guide to learn about some key legal concepts and options for making child arrangements. 

Last updated 26 October 2022.

‘Parental responsibility is a legal concept set out in the Children Act 1989. ’Most parents have parental responsibility for their children, which includes a duty to protect and maintain them and provide them with a home. It also encompasses various rights relating to the upbringing of a child, covering issues such as making decisions about schooling and medical treatment.

All gestational mothers (ie the person who gave birth to a child) automatically have parental responsibility. Fathers who are married to or in a civil partnership with the gestational mother or who are listed on the birth certificate also automatically have parental responsibility. Under the Human Fertilisation and Embryology Act 2008, same-sex partners are who married to or in a civil partnership with the gestational mother at the time of conception usually have automatic parental responsibility. Once parental responsibility has been established, it does not cease upon divorce or separation.

If a parent who doesn’t automatically have parental responsibility would like to obtain parental responsibility and the other parent agrees, they can use a Parental responsibility agreement, which needs to be signed and witnessed at the local family court.

For more information, read Parental responsibility.

In the majority of cases following a divorce or separation, parents will make their own arrangements regarding who their children will live with, how often the other parent will see them, and how parental responsibility will work in practice. If there are difficulties reaching an agreement, mediation or collaborative family law can be helpful in overcoming any obstacles. However, a court will not be able to enforce an agreement reached informally.

If divorcing parents are unable to reach an informal agreement regarding the custody arrangements for their children, it may be necessary for the court to intervene. A family court can make a ‘child arrangements order’, which may determine:

  • which parent (or other carer) a child lives with

  • the amount of time (if any) the child spends with the other parent

  • the nature of contact (if any) the child has with the other parent (eg the frequency of phone calls or online messaging)

Each child arrangements order is decided based on the specific circumstances of the family, with the specific child’s best interests at the heart of the decision.

A child arrangements order may also grant parental responsibility (eg if the order states that the child is to live with a father who didn’t previously have parental responsibility).

Grandparents do not currently have the automatic right to see their grandchildren. Any contact a grandparent has with their grandchildren would need to be agreed to by the parents. If they cannot reach an informal agreement with the parents (or either parent), grandparents may seek a child arrangements order to be allowed contact with their grandchildren. 

Grandparents require permission from the court to make an application for a child arrangements order. In granting such permission, the courts will typically consider:

  • the grandparent’s connection and relationship with the child

  • the nature of the application for contact and what contact arrangements are being sought

  • whether there is a risk that the application will disrupt the child’s life to the extent that it could cause them harm

A ‘specific issue order’ is another type of court order, which can be made where parents are unable to reach an agreement relating to a specific issue regarding parental responsibility. Specific issue orders may be used to, for example:

  • decide which school a child should attend if there is a dispute (eg if the parents disagree about religious schools)

  • determine if a parent can take their child abroad on holiday

A ‘prohibited steps order’ is a similar type of court order, which essentially prevents a parent from doing something relating to parental responsibility. For example, it may prohibit them from taking their child abroad on holiday or from changing the child’s name.

Parents will normally agree on child maintenance issues (eg issues related to how to support a child financially) themselves in a private arrangement. Where this is not possible, the Child Maintenance Service can get involved to help determine how and how much a parent should support a child.

For more information, read Child maintenance.