How is Child Custody Decided?

Decisions regarding a child’s residence are of primary importance following parental separation. How child custody is decided largely depends on the circumstances of the parents’ separation, and whether agreement can be reached through informal negotiations or by court order.

Agreeing child custody between parties

It is generally preferable for former couple to try to come an arrangement for child custody between themselves.

This approach can offer considerable flexibility to allow for the best interests of the child and to accommodate each parent’s situation.

You may arrive at a joint custody solution or sole custody with visitation for the other parent at set times.

If you are able to agree child custody arrangements with your former partner, it is recommended that the details are recorded in a written document. Such an agreement would not, however, be legally binding or enforceable by law.

To make the agreement official and legally binding, you would need to instruct a solicitor to draft a consent order detailing your agreement for the courts to approve. You will have to pa a court fee to have a consent order approved by a judge.

Mediation or other intermediary support

If you are having difficulty agreeing child custody arrangements informally, the next step is to attempt mediation, where possible. Mediation will not always be suitable, such as in instances of domestic violence, however courts are placing increasing emphasis on parties exhausting alternative forms of dispute resolution before taking court action.

Mediation will usually take place at a family support centre with an independent mediator to help you keep the focus on the issue of child custody. The mediator will always be looking for what is best for the child and their role will be to keep personal feelings towards each other out of the discussions.

The mediator will try to keep a calm and relaxed atmosphere and may ask if they can speak with your child. They will only do this if it is agreeable to both parties and if they feel it is necessary to help the case.

They will listen to both parents point of view and will not take sides with one against the other. The mediator is there to help both parties come to a satisfactory agreement on all aspects of caring for your children.

There are exceptions to mediation being required as a first step, such as if social services are involved or you are a victim of domestic abuse. Otherwise the courts will expect you to have at least attended an MIAM prior to accepting your case for a child custody hearing.

Mediation is not free, but if you are on a low income you may be able to get legal aid costs to cover the cost of the MIAM, the cost of the mediation sessions for the person on a low income and if necessary help with solicitors fees after mediation. Otherwise the cost is usually around £30 for the initial MIAM and around £80 for each subsequent meeting per person. You will usually only need to attend 3 – 4 meetings.

If you are still unable to reach an amicable agreement, but would like to avoid court, your next step would be to go to Arbitration. Arbitration is not covered by legal aid, and is expensive. However, you would be able to choose where the hearing takes place and an Arbitrator, not a judge will make the decisions on child custody.

You may wish to go to Arbitration if you want a quick decision and are having difficulty reaching one. The Arbitrator will make the decision for you with the best interest of the child based on the facts presented. The Arbitrator’s decision is legally binding and both parents will have to adhere to the decisions made.

Should mediation not be effective, and you don’t wish to pay out for Arbitration, the next step would be to apply for a court order.

There are different types of court order.

  • Child Arrangements Order – to determine where your child will live, how much time they may spend with each parent and all forms of contact.
  • Specific Issue Order – this is to decide on how the child will be brought up. It will include things like what school they attend and their religious beliefs.

Either parent may apply for a court order, or anyone that has legal parental responsibility. You will need the assistance of a solicitor who specialises in family law to help you fill out and file the application with the courts.

Court order

Firstly a ‘directions hearing’ will be arranged which will usually include a family court adviser.

The judge or magistrate will determine what you are able to agree upon, what you are unable to agree on and if there are any risks to your child.

You will be encouraged at all times to consider what is best for the child. If you can reach an agreement at this point, the judge will issue a consent order that will state all that you have agreed upon and that will be the end of the process.

Should you not be able to agree at the first court hearing, the judge or magistrate will timetable what should happen next. You may be asked to try mediation again, or attend a course called ‘Separated Parents Information Programme’. This course will be for each parent to attend separately and will usually be no more than 2 meetings. If at any juncture you are able to reach an agreement, the judge or magistrate will end the process.

Alternatively the courts may require a Cafcass (Children and family court advisory and support service) report on your case. They may speak with your child to determine their feelings and will be looking to do what is best for your child. You will both get a copy of the report.

Should it be necessary for the courts to make the decision regarding who will be granted child custody, the judge will be looking to see what is in the best interest of the child.

They will decide whether joint custody is practical, ie do both parents live close enough to be able to realistically be able to have the child living with them. They will need to be in close proximity to school, doctors, dentist, friends and family to ensure as little disruption to the child as possible.

Should joint custody not be feasible, then the judge will decide which parent should be granted sole custody and whether or not the other parent has visitation rights. If they do decide that it is in the best interest of the child to still continue contact with both parents, a visitation order will be established and days and times will be set.

Considerations for the Judge or Magistrate

The Children will always be the priority, with their welfare being of the utmost importance. They will want to know what the child wants and how they feel. The child’s emotional, physical and educational needs will be considered and how any changes in their circumstances will affect the child.

The child’s age, gender, characteristics and background will all be a factor in the decision process. The judge or magistrate will want to ensure that the child is safe from any possible harm and the parent has the ability to meet the child’s needs.

A judge or magistrate will only make an order that is in the best interest of the child.

When deciding where is the best place for the child to be placed, many factors are taken into consideration:

Child’s feelings:

If your child/children are old enough, usually 12/13, they will be asked for their input by the courts and their feelings will be taken into consideration.

The Cafcass officers are trained to talk to children in a sensitive way and if it is appropriate to speak to them, they may not necessarily be asked directly who they wish to live with as this can lead to them feeling awkward as they don’t wish to upset either parent.

Children under aged 11 and under will be allowed their say, however, they may not carry as much weight with the court’s decision.

With very young children, they may just be asked to draw a picture and describe what they have drawn as a way of determining their feelings. However it is determined, the main consideration will always be to cause as little distress to the child as possible. If the Cafcass team feel the child is upset, they will encourage the parents to try again to reach a decision without involving the child.

At 16 years of age, a child has the right to choose which parent they wish to live with.

Parent’s input:

The judge will look at who has had main responsibility for the upbringing of the child so far as removing them from that parent may be very upsetting for the child.

They will want to know who will be able to dedicate the most time to the child. It is usually considered more beneficial for a child to be with a parent rather than a child minder where possible, so if one parent is able to dedicate more contact time, this may count in their favour.

However, if either parent poses a risk to the child through alcohol or substance abuse for example, or any abusive behaviour, then the judge will be unlikely to grant them custody.
Parental responsibility

You may only apply for custody of a child if you have parental responsibility for the child.

Married Parents:

When the parents of a child are married, both have automatic parental responsibility.

Unmarried Parents:

The mother has automatic parental responsibility from birth, regardless of whether she is married or not. The father will need to apply, with the consent of the mother, to obtain parental responsibility, unless he is listed on the birth certificate in which case he already has parental responsibility.

Same Sex Married Parents:

A child that is conceived through artificial insemination, the birth mother and their spouse may both have parental responsibility if named on the birth certificate.

Adopted children will have a separate agreement drawn up at time of adoption stating who has parental responsibility.

Should you have a child conceived through surrogacy, where a third party agrees to carry the child for you, then both partners may apply for a parental order once the child is born.

Same Sex Unmarried Parents:

An unmarried spouse is not recognised as a legal parent unless the unmarried partner is named on the birth certificate, and all the legal documents have been signed at the clinic. Then the partner can apply for parental responsibility.

With surrogacy, the law currently only allows one partner to be the legal parent in an unmarried same sex relationship. This is due to change later this year.

Legal Advice

At every stage of a child custody case, the child and their best interests should remain the primary focus.

A family law specialist solicitor will guide you through the options open to you and help with formal requirements such as court process to help ensure h as little disruption as possible to your child’s life.

How is Child Custody Decided? 2
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