Joint custody, or joint residency as it is referred to in the UK Children’s Act 1989, is a legal decision regarding where the child or children of separated couples will live.

Joint custody does not necessarily indicate a 50/50 split for the parents, it is simply that both parents have the child living with them at some time. This could be that a child lives with one parent on weekends and holidays and the other the rest of the time.

The child will be the priority in the decision of joint custody. It is important to ensure that there is as little disruption in the child’s routine as possible.

Joint custody is generally recognised as being beneficial for the child, ensuring continued contact with both parents and that both parents are still actively involved in their child’s every day life. However, it is not without its difficulties.

Coming to an Agreement Regarding Joint Custody

Custody arrangements are determined by an agreement as to where the child will live and how much time they will spend at each parent’s home. This agreement may be reached by informal discussions and negotiations between both parties, or through mediation or the courts where an agreement cannot be reached independently.

Informal negotiations

The first step is to consider agreeing arrangements between yourselves. You may be able to draw up a parenting plan. This will lay out the important aspects of where the child will live, who will pay for what, how much time they will spend in each home and other day to day arrangements. This agreement is not in itself legally binding. Should you wish to make the agreement regarding joint custody legally binding, you will need to contact a solicitor who specialises in family law. Your solicitor will be able to draft a Consent Order which both you and your ex partner will need to sign. This will contain the same sort of information as the parenting plan, but is a legal document that is legally enforceable on both parties. .

Once the consent order has been drafted and signed, you will need to submit it to the courts to complete the process and have the order approved. One parent will need to fill in the C100 court form, your solicitor will be able to assist you with this.

To fill in the form you will need to tick the box to say you are ‘applying for an order to formalise an agreement (consent order)’. Then send to the court closest to you that deals with children’s cases, your solicitor will have that information. You must ensure that you send in the original C100 form plus 3 copies of the form and your draft consent order that your solicitor has drawn up. Retain a copy of the draft consent order for your records. Finally you will be required to pay the court fee.

Once the court has received your paperwork and fee, a judge will approve your consent order to make it legally binding. In these circumstances, there is usually no need for a court hearing.

If for any reason the judge doesn’t think your consent order is in the children’s best interest they can change your consent order or make a different court order to determine what is best for your children. This is why it is important to have your solicitor help you to draw up the agreement to ensure that you are happy with the arrangements prior to sending it to the judge.

Unable to Reach an Agreement Regarding Joint Custody

If you cannot agree with your ex-partner regarding where your child will live, you may ask the courts to make a decision on the parts on which you have reached an impasse. The first step will be to have a ‘directions hearing’, which usually includes a family court advisor to determine what you are and are not able to agree upon.

The courts will expect you to have attended at least an initial Mediation Information and assessment meeting (MIAM), unless there are mitigating circumstances such as domestic abuse, before they will accept your application for a hearing. They will encourage you to always think about what is best for the child.

If an agreement can be reached at this point, the courts will approve your consent order. However if all avenues of mediation have been exhausted, then you may still need the courts to make a decision for you.

For custody agreements, you will need to apply for a Child Arrangements Order. It is highly recommended that you seek advice from a solicitor specialising in family law if you are to attend court. The process is very complex and you will want to make sure that you achieve the best possible outcome for both you and your children.

Anyone who has parental responsibility for the child can apply for a Child Arrangements Order, regardless of gender or type of relationship. Having legal parental responsibility means that you are either named on the birth certificate or have a legal parental responsibility order.

The process can be very lengthy and you may need to attend a number of court hearings before a decision is reached. The judge may even decide to send you back to mediation to try and resolve the issues.

What Do The Courts Base The Decision On?

The child’s welfare will be of the upmost importance when determining where the child should live and who should have custody. Your child may be asked what their feelings on the situation are and if they are over the age of 12, this could have a huge impact on what the court decide.

It has been traditionally the mother who is granted sole custody of the children with the father being awarded visitation rights. In the case of same sex partners, if the biological mother is in the relationship, then again, she would have the most likely chance of being awarded custody, otherwise it would be the parent considered to be the main carer.

So if you are wanting joint custody to ensure you have shared responsibility, you will need to demonstrate to the courts that it would be beneficial to the child. This means not only what the child wants, but also that it would cause the least disruption in the child’s life. You will need to demonstrate that you are capable of meeting your child’s emotional, physical, religious and any financial needs.

Your solicitor will help you to put forward the best case to demonstrate your commitment to your child, giving the best opportunity for both parents to be able to continue to share the parenting whilst living separately.


Making a Joint Custody Agreement 1

Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.

Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.

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