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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 child custody for any children you have together.

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 schooling or medical treatment.

All mothers automatically have parental responsibility and fathers also have this if they are married to the mother or are listed on the birth certificate. Once parental responsibility has been established, it does not cease upon divorce or separation.

If you would like to obtain parental responsibility and the other parent agrees, you can use a parental responsibility agreement which needs to be signed and witnessed at your local family court.

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 (eg. due to issues such as domestic violence), it may be necessary for the court to intervene. A family court can make a ‘child arrangements order’ which determines:

  • Which parent (or other carer) a child lives with
  • Amount of time (if any) the child spends with the other parent
  • The nature of contact (if any) with the other parent - such as frequency of phone calls, Skype messaging etc.

Each child arrangements order is decided on the specific circumstances of the family and on what is in the best interests of the specific child.

A child arrangements order does not affect parental responsibility. Grandparents can also seek a child arrangements order to be allowed contact with their grandchildren if they cannot reach an informal agreement with either parent.

Another court order which can be made where parents are unable to reach agreement relates to specific issues regarding parental responsibility. This is known as a ‘specific issue order’ and examples include:

  • Deciding which school a child should attend where there is a dispute (eg. in case of religious schools)
  • Determining if a parent can take their child abroad on holiday

Related to this is a ‘prohibited steps order’ which essentially prevents a parent from doing something relating to parental responsibility (eg. prohibiting them from taking their child abroad on holiday).

Parents will normally agree on child maintenance issues themselves in a ‘family-based arrangement’. Where this is not possible, the Child Maintenance Service can get involved. 

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