Child custody and child arrangements orders

Reviewed by Julian Hawkhead, senior partner, Stowe Family Law

Little boy holding cardboard cutouts of his family

Making the right arrangements for your children is a vitally important part of sorting out your lives after a divorce. You need to focus on what is in your children's best interests, regardless of the parents' feelings towards each other

Who gets child custody?

One of the key issues is to decide which parent a child will live with. This is often referred to as child custody or residence, though the courts now talk about 'child arrangements' instead. If possible, custody should be agreed between the two of you.

In principle, a child can live with either parent after they separate, depending on the child's best interests. Factors to consider (and which the court would take into account if you cannot reach your own agreement) include:

  • the child's own wishes and feelings (particularly for older children);
  • the child's physical, emotional and educational needs;
  • the likely effect on the child of any changes in circumstances;
  • the child's age, gender, circumstances and any other relevant background;
  • any harm or risk of harm;
  • how capable each parent is of looking after the child's needs (leaving aside the separate issue of who will provide financial support).

In practice, this usually means that children remain with the parent who has taken the major role in looking after them (typically the mother), often staying in the existing family home. The other parent will normally pay child maintenance to help with child support costs.

While it is possible for residence to be shared, this does not generally provide the stable environment that is in the child's best interests. Similarly, it would be unusual (but not impossible) for one child to live with one parent and another with the other parent.

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Non-resident parents and parental responsibility

As part of your agreement, whichever parent does not live with the child will almost always have contact rights. Again, these will be based on the child's best interests.

Exceptionally, an older child may not wish to have any contact, or a parent may be a danger to the child.

Often the parents agree that the non-resident parent has weekly or fortnightly contact with a child. This could include overnight stays at the non-resident parent's home, contact on special occasions (such as the child's birthday) and/or an annual holiday together. Contact arrangements may also include other family members such as grandparents.

Regardless of which parent a child lives with, both parents continue to have parental responsibility. This means that while the parent the child lives with will make day-today decisions, both parents have a right to be involved in major decisions.

Wherever possible, maintaining a constructive relationship with your former spouse - and ensuring that you are both acting in the child's best interests - is the best approach.

Child arrangements orders

If the parents cannot agree things between themselves, they can apply to the court for a child arrangements order. Child arrangements orders replace residence orders (deciding which parent a child should live with) and contact orders (covering what contact rights the non-resident parent has). An order usually lasts until the child is 16 or exceptionally 18 years old.

Anyone with parental responsibility can apply to the court for a child arrangements order. Other people, such as grandparents, may need the court's permission if they want to apply for an order. The court will decide whether the circumstances justify the potential upset to the child.

You can apply for a child arrangements order if you cannot agree child custody and contact rights from the outset. You can also apply for an order if the other parent isn't living up to a previous agreement or child arrangements order - for example, by not allowing you the agreed contact with your child.

In practice, these can be very difficult situations. It is hard for the court to compel the resident parent to do something (for example, by fining or even imprisoning them) while still acting in the child's best interests.

Prohibited steps and specific issue orders

Two other types of court application relating to children are also available to a parent.

If you cannot agree on an important decision, you can apply for a specific issue order. For example, you might ask the court to make a decision about where the child should be educated, or the child's religious upbringing.

A prohibited steps order is used to prevent a particular action. For example, you might want to prevent:

  • your child being moved to a different part of the country where it will be difficult for you to maintain contact, or taken out of the country altogether;
  • your former spouse changing the child's surname after marrying a new partner;
  • a particular medical treatment that you believe is not in the child's best interests.

Applying for an order

Wherever possible, the court will want you to agree arrangements between yourselves.

If you want to apply to court, you must normally have at least tried a mediation and information assessment meeting (MIAM) first. There are exceptions, such as cases involving domestic violence or where there are concerns for the child's safety, or in urgent cases (for example, if one parent is about to take the child out of the country).

You apply to court using the C100 application form. You also normally pay a £232 fee, though you may be entitled to help with costs if you are on benefits or a low income.

The court will notify the other parent and also Cafcass (the Children and Family Court Advisory and Support Service). Cafcass represents the child's interests at court and will also check to see whether the child may be at risk of harm.

The first hearing is usually about five or six weeks after the application. The court and Cafcass will try to help the parents reach agreement. If this is not possible, you may be required to take particular steps, for example:

The court will issue an order recording what has been agreed and any outstanding issues. The court may also issue temporary interim orders - for example, covering contact while the dispute continues.

If necessary, the case will continue to further hearings until you either reach agreement or the court makes a decision. The court will always aim to resolve the case quickly and safely in the interests of the child.

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