How is Child Custody Decided in Divorce?

Child custody decisions are among the most sensitive and complex aspects of divorce. The guiding principle in all matters relating to where children live and the contact they have with either parent remains “what is in the best interests of the child?”. As a family law solicitor in Milton Keynes, I support and guide clients through child custody issues. Understanding the legal process involved can help you make informed decisions and ensure the best possible outcome for your children.

The law reframes this question by focusing on a parent’s responsibilities towards a child, rather than their rights. Both parents typically have parental responsibility if they were married at the time of the child’s birth or if the father is listed on the birth certificate. Parental responsibility means both parents have a legal duty to care for and make decisions about their child’s upbringing, education, and welfare. This responsibility continues regardless of whether the parents are together or separated.

The decision about where a child lives after a divorce is ideally made by the parents through mutual agreement. This agreement can be formalised through a Parenting Plan or a Consent Order, if the parents wish to make it legally binding. If parents cannot reach an agreement, they may seek the assistance of mediation services. In cases where an agreement still cannot be reached, the matter can be taken to court for a decision.

While it is preferable for parents to reach an agreement outside of court, there are situations where court intervention becomes necessary. The court’s primary concern is the child’s welfare. If a court is involved, it will issue a Child Arrangements Order which specifies where the child will live and the arrangements for contact with the non-resident parent. The court will consider several factors, including the child’s wishes and feelings (depending on their age and maturity), the child’s physical, emotional, and educational needs, the likely effect of any changes in their circumstances, and the ability of each parent to meet the child’s needs.

Obtaining sole custody, now referred to as a “live with order” giving sole residence, means the child will live with one parent, and that parent will have the authority to make decisions about the child’s welfare. Sole residence is granted only when it is in the child’s best interests. This could be due to factors such as the other parent being deemed unfit due to issues like substance abuse, domestic violence, or neglect. However, even in cases of sole residence, the non-resident parent will usually still have contact rights unless it is deemed harmful to the child.

When separating from your partner, making child arrangements should be a priority. Start by discussing and agreeing on key issues such as where the child will live, visitation schedules, holidays, and how major decisions about the child’s life will be made. It can be helpful to draft a Parenting Plan that outlines these agreements in detail. If you are unable to agree, consider mediation as a first step before resorting to legal action. Mediation can provide a less adversarial and more cost-effective way to resolve disputes than court proceedings.

There is no specific age at which a child can decide where they live. However, the court will consider the wishes and feelings of a child, giving more weight to their views as they get older and more mature. Generally, the views of children aged 12 and above are given significant consideration. Nonetheless, the final decision will always be based on the best interests of the child, balancing their wishes with other welfare considerations.

The right to stay in the family home after a divorce depends on various factors, including the terms of any property ownership, mortgage arrangements, and the needs of the children. The court aims to ensure stability for the children, often favouring arrangements that allow them to remain in the family home, especially in the short term. This may result in one parent staying in the home with the children while the other finds alternative accommodation. In the long term, the family home may be sold and the proceeds divided, or one parent may buy out the other’s share.

The guiding principle in all custody matters is the best interests of the child. While parents are encouraged to reach agreements amicably, the legal system provides mechanisms to resolve disputes when necessary. Understanding your rights and the factors the court considers can help you navigate this challenging time and make informed decisions that prioritise your child’s well-being. If you are facing child custody issues, it is important to seek advice from a family law solicitor who can provide valuable guidance and support.

Ready to take the next step? As leading family lawyers in Milton Keynes, our team of family law specialists can advise you about your divorce, including child custody issues. As well as our head office in Milton Keynes, we also have solicitors in Bicester, Watford, and Central London. Talk to us in confidence and find out where you stand. Get in touch – we’re here to help.

This article is intended for the use of our clients and other interested parties. The information contained in it reflects the author’s view and is believed to be correct at the date of publication. However, it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional legal advice.