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Who gets custody of a child in divorce?

Reasons to choose Wilson Browne

Divorces can be painful, not least for any children involved, especially where there are issues of which parent the child should live with.

But when it comes to questions of who gets custody of a child in a divorce in the UK, things have changed.

The Children Act 1989 changed the way the law deals with children and it has implications for couples divorcing. The term Parental Responsibility was created.

  • Before 1991, the court would always consider who should have `custody`, and who should have `access` to, children. This would be a condition of the divorce going ahead
  • After 1991, this changed as the court no longer makes orders or asks about arrangements for children. Instead, the law encourages parents to agree on what’s best for children, but the progress of the divorce is not dependant on it.

Now, the court will only become involved if it’s clear that making an order will be better for the child than not making one.

Who Has Parental Responsibility?

Parental responsibility is automatic under certain conditions:

  • The mother always has it
  • Both parents have it if they are married at the time of the child’s birth.

In addition, for any children born on or after 1 December 2003, if the father was registered as such and attended the birth, then they have parental responsibility. This parental responsibility applies to unmarried fathers too.

A father can also gain parental responsibility by entering a Parental Responsibility Agreement, or by applying to the court for a Parental Responsibility Order.

An unmarried father can acquire parental responsibility by marrying the mother after the birth.

What Replaces Custody?

A major concern concerning divorces is what will happen to the children:

  • Where will they live?
  • Who will take care of them?
  • How often will they have contact with the other parent?

Traditionally, the question could be: how do I get custody of my child? But in legal terms, custody no longer exists.

The court will not award custody to one parent or the other. The preferred solution is for parents not to involve the court or the legal system at all.

But if parents cannot agree on arrangements for children, then they can turn to family law solicitors to help with negotiations.

Either parent may need to apply to the courts for a child arrangements order if agreement cannot be reached.

This court order can decide arrangements for where the child will live, and how they spend time or have contact with both parents.

How to Reach an Agreement

Ideally, parents should be able to reach an agreement about their children. But in some situations, they will need the help of solicitors or the court.

Parents have various options:

  • Mediation
  • Negotiation
  • Court Proceedings

Family mediation can be an effective alternative to taking a more formal, legal approach. This is a voluntary, confidential process for both parents, with the support of an impartial mediator.  It is necessary to consider mediation before court action.

Where mediation or negotiation fails, the last resort of a court application may be considered.

The court will encourage the parents to reach a workable solution during any proceedings but if agreement cannot be reached the Court will decide upon the child arrangements that should be made in the interests of the children.

Putting Children’s Interests First

The law will always consider what’s in the child’s best interests. This includes their wishes and feelings, emotional, physical and educational needs and what the likely effects of a change in their circumstances will be.

Therefore, the best option for any parent looking to make arrangements for children after separation or divorce is to cooperate with each other and find agreement if possible.

For more information about our family law services, please call us on 0800 088 6004, or fill in our contact form, and we will be in touch as soon as possible.

Heather Davies


Heather Davies

Associate Legal Practitioner

Heather is Head of the Family Team and has over 30 years experience in advising clients on all aspects of relationship breakdown including disputes involving arrangements for children and the financial aspects within divorce.