As a parent, it goes without saying that you always want the best for your children. This includes making sure they receive the correct care, support and attention they need while you and your partner are going through a divorce.
Child custody can be a complex topic and in order to make informed decisions and protect your legal rights, it is essential to get a deep understanding of the law.
How child custody works in England and Wales
When a divorce takes place, both parents will continue to share Parental Responsibility in respect of their children. This means they can both participate in decision making that surrounds their child's life.
Both parents will be expected to work together to agree the arrangements for where their children should live and how much time they should spend with each parent, provided it is safe to do so.
If parents are not able to agree the arrangements for their children, then their living arrangements can be determined by the court if all other avenues of trying to resolve the issues have been tried (such as mediation or if there are safeguarding concerns).
The agreement surrounding who will care for the child can be made legally binding through the court by a Child Arrangement Order (CAO).
Although the term ‘custody’ is still used, through the updates in the law, it is now referred to as a child arrangement order.
Child custody laws during divorce
The court does generally favour shared care arrangements; however, this does not mean that a child will spend 50% of their time with each parent.
Child Arrangement Orders (CAO)
A court will determine a CAO under section 8 of the Children Act 1989 after considering the welfare checklist with the overriding consideration being; what is in the best interests of the child. The checklist covers:
The wishes and feelings of the child (considered in light of their age and understanding)
The child’s physical, emotional and educational needs
The likely effect on the child due to any change in their circumstances
The child’s sex, background and any relevant characteristics
Any harm which the child has suffered or is at risk of suffering
How capable each parent is of meeting the child’s needs
The range of powers available to the court
In general, CAOs will last until your child is 16, but the court can make orders which last until a child turns 18 in some exceptional circumstances.
If you and your ex-partner cannot agree on the terms of a CAO, then mediation may be the next appropriate step. This process involves both parties discussing their wants, needs and worries with an impartial third-party. The goal is to reach neutral grounds and agree on the best course of action with the child’s welfare being the paramount consideration.
Fathers’ child custody rights during a divorce
Many fathers worry that they will not have the same parental responsibility as the child’s mother in a divorce. However, as a father, you will have the same responsibility if you were married to the child’s mother and/or you are named on the birth certificate.
If you are an unmarried father, you can acquire parental responsibility through specific conditions:
- Jointly registering the birth with the mother (if the child was born after the 1st December 2003)
- Entering into a parental responsibility agreement with the child's mother
- Obtaining a parental responsibility order from the court
Without parental responsibility, fathers unfortunately have very few rights regarding their child. This is why it is essential to apply for parental responsibility.
Establishing paternity
Unmarried fathers are not automatically registered on the birth certificate and can only be included if the mother consents and essentially confirms he is the father. This is common in today's society, with many cohabiting couples agreeing to declare paternity.
However, if the parents divorce before the birth of the child, the mother has no legal obligation to include the father on the birth certificate. This means the father will not share parental responsibility and the mother will have sole parental responsibility.
Fathers can be added to the birth certificate after the birth has been registered if the mother applies to the General Registry Office for the birth to be re-registered.
If there are disputes about paternity, the court can order a DNA test to be conducted. If you are proven to be the biological father, a Declaration of Parentage can be made, which informs the Registry Office that the birth can be re-registered to include the fathers name.
Typical custody arrangement in England and Wales
As we’ve mentioned, more often than not, the courts will consider shared care arrangements for children.
Joint custody doesn’t mean 50/50. Depending on the circumstances, it could mean 60/40 or 70/30 with equal time in school holidays. The exact arrangements will be determined on an individual basis to meet the needs of the children involved and ensure their welfare and wellbeing is the priority.
The alternative to joint custody is sole custody. This means that one parent has the primary responsibility for the care and upbringing of the child. As the parent with sole custody, you will make the major decisions about your child’s life, such as those concerning healthcare and education (but these decisions should still be made in conjunction with the other parent if they have parental responsibility).
Although shared care is preferred, there are some conditions that justify sole custody:
- A record of neglect or abuse
- Convictions or a criminal background
- Proven inability to meet the child’s needs
- Relocation of one parent
- Parental alienation
- The child’s preference
If you and your partner are struggling to reach an agreement about a Child Arrangement Order, you can find out more information by reading our dedicated guide on children and divorce.