There are a number of factors to take into consideration when determining who will get custody of a child in a divorce. The biggest factor will be what is best for the child. How that is determined is dependent upon the parent’s current situation.
It’s important to stress that ‘custody’ as a legal term and concept no longer exists. The focus of the family courts is to ensure the child has a meaningful relationship with both parents, typically though a Child Arrangements Order, taking all of the circumstances of each individual case into consideration.
Factors such as who has had the main responsibility for the child’s care to date, which parent is able to spend the most time with the child, the emotional wellbeing of the child, and the parent’s ability to care for the child will all be taken into consideration when determining who gets custody of a child in a divorce.
What is parental responsibility?
To apply for custody of a child in a divorce, you must first have legal parental responsibility for the child.
For example, birth mothers and married fathers that are named on the birth certificate have automatic parental responsibility, or parental responsibility may have been granted through a specific parental order.
In the UK there has been a long standing tradition that the mother will be granted full custody of the child with the father being granted visitation.
In the case of same sex married partners, if the birth mother is part of the relationship, this rule would generally still apply. If the birth mother is not part of the relationship however, then the parent who has had the major share of parental responsibility up until separation, would usually be granted custody.
However, things are slowly changing. With the recognition by the government that it is often more beneficial for both parents to continue with parental duties on a regular basis, joint custody is becoming more of a likely outcome where it is applied for.
With the increasing population of stay at home fathers, the law is also beginning to recognise that the father may be the best person to have custody of the child.
It would be prudent to take legal advice on your circumstances to ensure that you can put forward your case for custody whilst demonstrating that it is in the best interests of your child.
How is custody determined?
Both parents should try to come to an agreement about where their child will live. If it is difficult to discuss because of the highly emotional content, then it is advisable to seek mediation.
A mediator, and sometimes a solicitor, will be able to discuss what each parent wants whilst remaining impartial. They will take into account the needs of the child and what they want may play a part as well, especially if they are considered old enough (age 12 +).
If a satisfactory agreement is reached, your solicitor can write up a parenting plan which will state who the child is to live with. In the case of joint custody, when the child will go to each parents house. Who has the main responsibility, what the arrangements for school etc are and it is a good idea to include doctors, dentists, school and other important information for reference.
Should you wish to make the agreement a legally binding document, then your solicitor can draft a Consent Order which will then be signed by both parents and will need to be submitted to court to be officially recognised.
You will need to fill out the C100 Court Form and pay a £215 court fee. It is highly unlikely that you will need to attend court to get this Order approved. The judge may make changes to the Order if they feel that it is in the best interest of the child. Your solicitor will be able to help you to fill out the form and ensure that you send it to an appropriate family court.
If both parents are applying for joint custody, the Judge will want to know if this is a workable solution. Do the parent’s live near enough to each other, the school, doctors, dentist and friends to make this a smooth process for the child when transitioning from one house to the other?
If they do not live close by, then they will want to know what the intention is. Will the child be spending holidays with one parent and school days with another? All these factors will be taken into consideration. What ever the decision, it will always be made with the child’s best interest.
If you can’t agree on child arrangements
If you can’t come to an agreement and you need to take the case to court for the courts to decide, you will need a solicitor that specialises in family law to help you to prepare your case.
It is generally a long process that can involve multiple court hearings and your child may be asked by a court appointed family officer for their opinion.
You will be expected to have attended at least an initial mediation session.
The aim will be to agree a Child Arrangement Order, stipulating the arrangements between both parents for the care of their children.
Exceptions apply where, for example, there has been domestic abuse. In such cases, the courts would be expected to recognise that the needs of the abused partner should be to be taken into consideration as well as the needs of the child.
The court’s will only grant orders that are in the best interest of the child. They will be looking at not only the child’s welfare, but the specific daily needs of that child and whether the parent seeking custody can fulfil those needs.
Child custody in divorce FAQs
Who gets custody of the children in divorce?
Rather than child custody, the courts look at arrangements that enable both parents to have contact and a meaningful relationship with the child.
Do courts always give custody to mothers?
When looking at child arrangements, the courts will look at the specific circumstances as well as the child's best interests, rather than arbitrarily favouring one parent over the other.
Who pays court costs in child custody UK?
Each party will usually have to pay their own legal costs, except in exceptional circumstances.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.