Custody is now known as residence and refers to the arrangements as to where the child will live for some or all of their time. The courts encourage for residence to be settled with an informal agreement between the parents.
If however an agreement cannot be reached or if an existing arrangement has been broken, you ma be able to apply to obtain legal custody of your child.
There are two main types of residence, full residence where the child lives with one parent full time, and shared residence (previously known as joint custody) where the child’s time is split between both parents.
What is full residence?
Full residence refers to situations in which the child lives only with one parent, known as the resident parent.
Full residence to one parent does not mean the other parent cannot have contact with their child, and they will retain the rights and responsibilities that exist where they have parental responsibility.
What is shared residence?
Shared residence refers to situations where the child resides with both parents. This does not automatically mean that the child will live with each parent 50 per cent of the time, and residence can be split unequally.
How can a father get custody?
If you are looking to gain custody of your child, there are a number of steps you can take. In the first instance, you should try to come to an arrangement with the other parent about where the child should live.
If this is not possible or you cannot agree, you may consider mediation or applying for court ordered residence.
What is mediation?
Mediation offers an option to resolve residence matters without going through the potentially lengthy court process.
Mediation is a way in which both parents can try to reach an agreement with the help of an impartial third party who can facilitate negotiation discussions.
Any agreement resulting from mediation will not be legally binding unless it is in writing and the document has been signed by both parents.
What is a Child Arrangements Order?
Residency through a Child Arrangements Order means that where the child will live has been mandated by the courts. Therefore it is legally binding and must be adhered to.
The court can decide where the child should live, and how long they spend with each parent in cases of shared residence.
Before you can apply to the court for a Child Arrangements Order, you must first attend a Mediation Information and Assessment Meeting (MIAM). This is also usually the first meeting you will attend when attempting mediation.
There are certain circumstances in which you will be exempt from attending a MIAM such as domestic violence. You will need to provide evidence in support of your exemption to the court as part of your application.
Once you have attended the MIAM and remain in dispute, you will need to fill out form C100. The application costs £215, and you will need to provide details of:
- Any children involved
- Evidence of attendance at MIAM or proof of your exemption
- The reason you are applying
You must present your application to all those with parental responsibility for the child except where you are making an emergency order.
Who can apply for a Child Arrangements Order?
It is not only those with parental responsibility that can apply for a residence order; however if you do not have parental responsibility of your child, you may need to request the permission of the court to apply.
If you were married when your child was born or are named on the birth certificate for births after 1stDecember 2003, you automatically have parental responsibility. If you are unsure whether you have parental responsibility, you should contact a qualified family solicitor as soon as possible to discuss your circumstances.
What happens after I apply?
The first hearing (also known as a directions hearing) will take place at your local family courts. The Children and Family Court Advisory and Support Service (CAFCASS) will be present throughout proceedings and will help the courts to decide what is best for your child.
How will the judge decide?
The courts will take into consideration a variety of factors, with the welfare of the child as the priority. The judge will be guided by the welfare checklist contained within the Children Act 1989 which considers:
- Feelings of the child
- The needs of the child (physical, emotional and educational)
- How the change in circumstances may affect them
- Age, sex, background or other pertinent characteristics
- Harm suffered or at risk of suffering
- The capability of each parent at meeting the child’s needs
- What powers the court has available to them
Where will the child live in the meantime?
The judge can make an interim order where there is concern over where the child will live during the process. For further information based on your specific circumstances, you should seek legal advice.
What if I disagree?
If you do not agree with the decision of the court, you can apply to change an order if you wish to vary certain details of the order. Or, if you disagree with the order entirely, you may be able to appeal.
When will a Child Arrangements Order end?
Unless otherwise stated, the order will usually expire when the child reaches 18 except where stated otherwise.
Why legal advice helps
If you are a father who would like to get custody of your child, it is crucial for you to seek professional legal advice as soon as possible. If you and the child’s mother cannot agree with who the child should live with, getting residence can be a long and complicated process.
Your solicitor can help you to understand your rights, and help guide you through the lengthy and potentially costly legal process of getting custody of your child.