Who gets “custody” of children on separation or divorce?
Separation & Divorce
The simple answer is -no one.
The reason for this is that the terminology of custody (despite its remaining popularity among some newspapers) is an outdated term.
In more recent years the Court could, if an application were made, make Orders known as Residence Orders (determining with whom the child should live) and Contact Orders (when and how the child would spend time with the other parent) however those terms are also now out of date. These labels often reinforced the concept of one parent having priority over the other which for the majority of cases is considered unhelpful.
The current position – Child Arrangement Orders
The position now is that, if there is a dispute between parents that cannot be resolved outside of Court, then the Court have the power to make Child Arrangements Orders. These Orders can determine where the child lives and with whom and how the child’s time should be shared between the parents. A Child Arrangements Order can set out arrangements for how the children should live with both parents and what time is spent with the other.
Who decides child arrangements after separation
In reality, on separation, the vast majority of parents are able to agree on how the children’s time should be shared between them. Often the arrangements mean that the child will have a main base with one parent and spend frequent time with the other or could mean that the child will genuinely have two homes, and move frequently between the two, in an arrangement that works best for the child.
There are no rules as to how or what the arrangements should be – it’s what works best for the children, so arrangements are in their best interests. A regular settled routine is generally considered beneficial to children, giving them certainty as to when they will be seeing each parent. Term time and holiday periods should be considered and how any holidays are going to be planned. Advance communication is always best to resolve these issues rather than one parent feeling blindsided, for example, a last-minute request for a holiday adds pressure and often leads to increased acrimony than if the request had been made with time to properly discuss and consider. Parents often find it helpful to agree on a detailed rota as to how the child’s time should be shared between them.
There will be occasions, however, when parents simply cannot agree on what the future arrangements for the children will look like.
There are a number of very helpful resources available to those who are separating and faced with these decisions -including CAFCASS (The Children and Family Court Advisory and Support Service) parenting plans and advice-now guides to child arrangements.
The CAFCASS website has good information for separating parents- not just those using the Court system.
Mediation/Legal support
On occasions, parents require the help of legal advice or a mediator to facilitate those discussions.
Legal advice can be helpful to help flesh out and identify issues and options and give you realistic parameters as to what can be done if ultimately agreement is not reached. Mediation provides an invaluable opportunity to sit together, face to face or virtually, and discuss between you what would work for your children and your family -with the aid of an independent, trained mediator to guide and facilitate those discussions. Mediation can be set up in a variety of ways. Child Inclusive Mediation allows an opportunity for the voice of the children to be heard, not to make decisions or to have to choose between parents, but where children (typically those over 10) are given an opportunity to speak confidently to a trained mediator. Those discussions are then fed back to the parents, with the child’s agreement, to help inform the discussions the parents will have going forward and the decisions that need to be made.
What if you really can’t agree?
It remains the case that there are some cases, where despite attempts, parents still cannot agree. In those circumstances then an Arbitrator could be appointed to determine the dispute between the parties, or an application can be made to Court for a determination and Order.
Before a Court application can be made there is a requirement for the parties to have attempted at least one form of non-Court dispute resolution, such as mediation or early neutral evaluation, before issuing an application at Court unless there is a good reason not to do so.
Arbitration is a form of non-Court dispute resolution, but unlike other non-Court dispute resolution processes (such as mediation or early neutral evaluation) it enables a binding decision to be imposed upon the parents as you agree to be bound by the Arbitrator’s decision. Arbitration has the advantage of you choosing who will determine the dispute (Family Arbitrators would be specialists in family law- such as senior solicitors, barristers or even former Judges) and a bespoke process which can be moulded to your particular circumstances and often be much quicker than the traditional Court route.
How are decisions made?
If a decision has to be imposed it will be based purely on what the decision maker considers is in the child’s best interests, considering the individual circumstances of the case and something known as the “welfare checklist”, which is a series of factors to consider laid out in the Children Act 1989 including wishes and feelings of the children, how capable each parent is of meeting needs, effect of any proposed change etc. The emphasis is always on what is deemed best for the child rather than what either parent wants or feels entitled to.
In general, the law assumes that it is in the child’s best interests to maintain a meaningful relationship with both parents provided it is safe and secure to do so. In the absence of genuine welfare concerns to support reason to the contrary, the aim of the arrangements imposed is to ensure the arrangements made promote a regular and meaningful relationship between the child and both parents.
Sometimes in litigation, there is a need for further consideration into the particular circumstances – this could be either an independent social worker (so an expert with a wealth of experience – but appointed privately to report on your families’ particular circumstances) or a CAFCASS officer. In all Court applications, they undertake initial safeguarding checks which is designed to assist the Court in understanding whether there are any safeguarding concerns (e.g. domestic abuse or other such concerns) and report on whether they feel there is a need for any further involvement by them by a more detailed report. If a full report is ordered this will consider the circumstances, what each parent is saying and what the wishes and feelings of the child is -in light of their age (for example with school-age children the CAFCASS officer may meet with them – in a safe environment- to explore issues in an age-appropriate way with the child. Younger children may be supported in expressing themselves through the use of pictures and drawings. Importantly the children are not being asked to make decisions but to gather their views as to one of the factors to be considered before any final decisions are made as to what the arrangements will be.
The views of younger children, considered in light of their age and understanding, will be a matter for consideration. As children grow older, their views will become increasingly important, until by the time they are a teenager, there would have to be some very good reasons why the court would make an order which conflicts with what the child wants.
On occasion, what the child wants and what is in their best interests might be two different things and difficult to unravel. A child might say clearly that they do not wish to see the one parent but the other may feel or know that this is not a genuinely held view (such as influence from the other parent and being caught in acrimony). In very extreme cases the Court/Arbitrator is sometimes required to consider expert evidence, including psychiatrists and family therapists, before a final determination can be made. Even then, re-establishing a relationship between the child and the other parent can often be difficult, or even impossible, requiring long-term therapeutic input.
Please note that this blog does not apply to those where there are significant concerns regarding the welfare and safety of children with the other parent -those experiencing this should take legal advice before finalising any arrangements for the children.
Disclaimer: Please note that this page is for guidance only and does not replace legal advice. It is correct with the law at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation – contact us for dedicated help for you.
