Most Common Child Custody Outcomes

Following divorce or separation, it is natural for parents’ first thoughts to be directed towards future arrangements for their children. Many separating families will be uncertain as to what options are available to them and how they can be implemented.

The first point of note is that each separating family is different and that there is never a “one size fits all” solution for all families. Future arrangements for children will be governed by a range of factors including the ages of the children, their schooling requirements, funds available to the parties to meet basic housing needs and the wishes and feelings of the children themselves etc.

The second point of note is that child arrangement orders replace the old ‘residence’ and ‘contact’ orders, and indeed the even older child custody and access orders. Therefore, we will refer to child arrangements rather than child custody throughout this blog.

As mentioned above, there is no “one size fits all”. However, as it is important that children spend time with both parents where it is safe for them to do so.

Of course, there are reasons why this may not be possible, such as one parent living a large distance away or having a shift pattern or work commitments that make regular, frequent contact challenging.

Below are some of the most common child arrangement outcomes available in England and Wales:

Sole residency is when a child will have a primary home with one parent, considered to be where the child lives. They will then have contact visits with the other, non-resident parent, which can be agreed between the parents themselves or by the Court. This contact may include overnight stays too, and usually covers general term-time arrangements alongside any alternative holiday, birthday or other arrangements. Sole residency can be awarded to either the mother or the father, depending on individual circumstances.

It could be argued that sole residency provides a child with greater stability and emotional security, especially for younger children. It can also be the only option if one parent lives in a different part of the country or has a job that isn’t easy to fit shared parenting responsibilities around.

A child who has a primary home with one parent may mean that the other misses out on many of the important moments in that child’s life, and it may be harder to form a close relationship with the non-resident parent.

Joint residency is when a child splits their time between both parents. This means that the child will travel between the two houses of each parent. It is worth noting that joint residency does not automatically have to be on a 50/50 basis.

Joint residency allows a child to spend a good amount of time with both parents, and if a 50/50 arrangement can be agreed, then that time will be equal.

Joint residency can cause some practical difficulties, such as making sure that they have their school uniform or sports kit at the right house at the right time, but with good co-parenting, this can be overcome. Child maintenance payments will also be significantly affected.

Co-parenting generally refers to a separated couple who are raising a child together, or two single people who decide to raise a child together outside of a romantic relationship.

Both parents are actively involved in the child’s life and benefit from clear, open communication on the child’s best interests, often using a Parenting Plan to assist them.

In the case of a separated couple, co-parenting with a former partner can take an emotional toll, and it may be worth seeking some support to help with such matters.

This is where separated parents co-parent with an (almost) completely flexible schedule, shifting parenting obligations depending on work schedules or school schedules etc. It can mean that the amount of time that a child spends with each parent varies from week to week.

For parents who have changing shift patterns or who often travel for work, a flexible custody arrangement is a way to meet everyone’s needs. Being less rigid with the arrangements means that parents can adapt schedules around a child and any out of school commitments they may have, which is particularly useful for older children who may be involved in lots of activities.

The constant changes that come with a flexible arrangement may make younger children unsettled and unsure about when they will next see the other parent. This can be mitigated by putting in place a more structured arrangement during term time and allowing greater flexibility during the holidays.

This arrangement is not widely used, and is usually undertaken by parents of younger children for a period following separation, where the child stays in the family home and the parents are the ones who do the moving around – they may have another home that they go to when they are not with the children.

A bird’s nest arrangement avoids a child having to deal with the stress of moving between two homes on a regular basis and puts the emphasis on the parents to co-parent effectively and put their child’s needs above their own.

Although less stressful for children, there is also the emotional strain of maintaining a high level of contact with an ex-partner. It may simply not be a practical solution in the longer term.

It is important that arrangements relating to children are not seen to be “won”, but rather, settled. All matters concerning children are dealt with by the Children Act 1989, as amended by the Family Court and Children and Families Act 2014.  In determining the arrangements for a child, the court will give the following three principles the highest priority:

• The children’s welfare is of paramount importance;
• The court should have regard to the general principle that any delay is likely to prejudice the welfare of the child;
• The court should not make an order unless it considers that doing so would be better for the children than making no order at all.

In deciding whether an order should be made the court will have regard to:

1. The ascertainable wishes and feelings of the child concerned (considered in light of the child’s age and understanding);
2. The child’s physical, emotional and educational needs;
3. The likely effect on the child of any change in his or her circumstances;
4. The child’s age, sex, background, any other characteristic which the court considers relevant;
5. Any harm which the child has suffered or is at risk of suffering;
6. How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;
7. The range of powers available to the court under the Children Act in the proceedings in question.
8. There is also a presumption that the court should not intervene unless it is in the best interests of the child.

Section 1(2A) of the Children Act 1989 provides there shall be a presumption, unless the contrary is shown, that involvement of both parents in the life of the child will further the child’s welfare.

Therefore, it is not a case of who will ‘win’ a battle over child arrangements, but rather how each parent will best meet the needs of the child at that time, once all the factors have been considered. Getting advice from a child arrangements lawyer will help you understand how the court is likely to view your situation and what the possible outcomes are.

In applying the factors mentioned above, there is no automatic presumption that time between the parents should be equally shared, nor that either parent is automatically entitled to any minimum amount of time with the children. Even in circumstances in which parents begin to talk about “shared parenting”, this does not necessarily have to be on a 50/50 basis.

For most school aged children, their attendance at school is a key driver in child arrangements. With Monday to Friday spent at school for the majority of the year, it is perhaps natural to see how the “alternate weekend” model is arrived at so easily. During the week, school and bedtime routines, homework and extra-curricular activities, along with geographical proximity will frequently dictate the possibility of midweek contact, including overnight staying contact.

Non-term time contact is also often distributed to meet the working patterns of the parents, affording both parents the opportunity to have an extended holiday with the children during the summer in particular. Similar arrangements may also apply to half-terms, Easter and Christmas and other religious festivals too. Frequently, parents will break away from “standard” contact arrangements to facilitate special events such as birthdays, Mother’s / Father’s Day etc.

The parties are also encouraged to allow for some flexibility in arrangements for those unforeseen events such as weddings, family celebrations.

It is vitally important that the matters concerning the arrangements for children are not mixed with other disputes regarding divorce or finances. It is helpful if the parties can reflect on the criteria the court would use to make orders in the best interests of children, when determining their proposals for arrangements with their former partner. If arrangements cannot be directly agreed between the parties, consideration should be given to alternative dispute resolution, such as mediation, so as to avoid the costs and delays of court proceedings.

More information about child arrangements can be found here, but if you are struggling to agree child arrangements, or would like to discuss any of the points raised in this blog further, then speak to one of our child arrangement solicitors today for reliable and accredited legal advice. Hawkins Family Law are family law specialists, meaning we have years of experience with cases regarding child arrangements, family matters and more.