Who gets child custody after a separation?

Children tend to be central to the separation process. Parents often find it hard to agree where their children will live, leading to long and drawn out proceedings. This can be very stressful for everyone involved, including the children. By understanding how child custody works you can help to avoid a traumatic experience and work together towards an amicable solution for everyone.

Deciding on residency arrangements for your children after a separation is a complicated issue. If you and your partner cannot agree on where your children will live, a court will decide for you. The court will only make a residency order once all other options have been exhausted.

Parents' rights

When a married couple separate, both the mother and father have Parental Responsibility which mean they both have a say in where their children live. With unmarried couples, only the mother automatically has Parental Responsibility, so she has sole decision over where her children live.

However, since 2002, unmarried fathers gain parental reasonability if they are on the birth certificate. Fathers can also get Parental Responsibility through a Parental Responsibility Agreement. This can be done at any time during the relationship and can also be ordered during the separation process.

Making child custody arrangements

Prior to April 2014 a Statement of Arrangements was presented at court with a divorce petition. It proposed where and with whom the children will live, what school they will attend, who looks after them and how often they see the other parent. However, this is no longer the case. Child matters are no longer dealt with alongside a divorce petition.

If you and your ex-partner can agree on child arrangements the process is fairly straight forward and you don't need any official paperwork. You can make your agreement legally binding using a 'consent order'. You and your ex-partner will need to complete a C100 form. A solicitor can help with the form.

If you and your ex-partner can't agree on child arrangements you can try mediation to help you to agree. If you and your ex-partner can come to an agreement through mediation the process is much the same. A consent order can be drafted and a C100 form will need to be completed. If you can't agree on everything a court will have to decide for you.

How the courts decide

When making any decision about children, the court must take the children's welfare as their paramount consideration. They will consider the following key factors when coming to a decision:

• The child's wishes and feelings. These will be given more consideration the older the child is.
• The child's physical, emotional and educational needs.
• The likely effect of a change of circumstances on your child.
• The child's age, sex and background including cultural, religious or disability needs.
• If the child has suffered harm or is at risk of suffering harm.
• The parents' capabilities with regard to the child's needs.
• The range of powers available to the court.

It is always advisable to come to an agreement outside of court. This is because both parents will have had some say in the arrangements and it's therefore more likely to succeed. Arrangements enforced by the court as always more likely to be challenged.

If you're considering divorce or have any questions about child custody or any other aspects of divorce, please contact us in London (West Drayton) on 01895 449288 or in Hertfordshire (St Albans) on 01727 840900 or by email via our contact page.