For any parent going through divorce, one of the main priorities is likely to be the welfare of children. Although the term ‘custody’ has long since been replaced by child arrangement orders, the fundamental principle of how best to care for children remains the same. The subject of child custody after divorce is an emotional area that can quickly turn a seemingly amicable separation into a challenging legal dispute — one that could require court intervention in order to be resolved if both parties are unable to come to an agreement.
Therefore, the better you understand divorce custody rights and child arrangement orders, the more you will appreciate your own legal footing. With that in mind, let’s take a closer look at how custody is decided in England and Wales. You should note that we use the word “custody” throughout this article, as that is still a very common term used by the public — but you should bear in mind that this term no longer has a legal standing.
When a court decides what will happen with children they make “child arrangement orders”. With that established, let’s take a look at these agreements in more detail.
Parental Responsibility Vs Divorce Custody Rights
Before delving into the nitty gritty of child custody after divorce, it might first be useful to highlight the distinction between parental responsibility and child arrangement orders. Parental responsibility refers to your responsibilities as the parent of a child. These responsibilities include; providing a home, offering protection and ongoing maintenance, having standards of discipline, decisions about religious beliefs, taking care of necessary medical treatment, etc.
However, child arrangement orders are concerned mostly with where children live and spend their time. This does not supersede or negate parental responsibility, it merely considers the practicality of a child’s living arrangements. A partner with parental responsibility can apply to have custody of their children after divorce, but the result is largely dependent on family circumstances. In some cases, if there was a chance of harm for example, it may be deemed unsuitable for a child to live with one of the parents, despite them having parental responsibility.
Ultimately, if both partners have parental responsibility then they also both have equal rights regarding child arrangements. There is no one guaranteed outcome, and much will depend upon factors like past behaviour and how well the two sides can reach an amicable agreement during the divorce process.
The Types of Child Custody After Divorce
Until 2014, the question of who got child custody was often seen as one of the most pressing factors in a divorce or separation involving children. While the various types of custody now fall under the broader remit of the child arrangement order, the descriptions are still commonly used. The three forms of former divorce custody rights that are often referenced are:
- Sole Custody: Children live with one parent. This parent is solely responsible for making important decisions about their welfare. These decisions usually include schooling, healthcare and overseas travel, etc.
- Joint Custody: Children spend roughly equal time living at both parental homes and the parents have a shared responsibility for making key life decisions.
- Contact: In cases of sole-custody, where appropriate, it’s preferable for the child(ren) to maintain a relationship with the non-resident parent. The now-defunct contact order set out the terms of when, where, and how often these visits would take place.
As we’ve established, the term ‘custody’ no longer has much weight in a strictly legal sense. The courts tend to prefer for both parents to have a meaningful relationship with their children, and with no two relationships ever being quite the same, they do not tend to apply hard and fast rules towards shared responsibility. In this respect, what was known as ‘joint custody’ is regarded as the ideal scenario, as it gives children the likeliest chance of a balanced home life with both parents.
Child Arrangement Orders
When it comes to the welfare of children, the guiding principle of the courts remains the child’s best interests. As we’ve just established, there’s a preference for both parents to contribute equally, so it’s seen as being better if both sides can come to an amicable agreement without the need for legal intervention. However, if the relationship has become strained and reaching an agreement about living arrangements is proving difficult, this might not be possible without a Child Arrangement Order (CAO).
CAOs were introduced in April 2014 to replace Contact Orders and Residence Orders. If you’re unable to reach a childcare agreement with the other parent, you can apply for this type of order within three stages:
- Stage 1: With guidance from a trustworthy family law solicitor, you will need to prepare and submit an application for the order to the court. During the first hearing it’s common for the court to insist that both sides try to reach a mutual agreement at this early stage.
- Stage 2: Both parents will need to complete evidence forms regarding the behaviour of the other party. The Children and Family Court Advisory and Support Service (CAFCASS) could file their own report detailing their recommendations.
- Stage 3: If no agreement has been made, a judge will consider all of the evidence and make a formal ruling regarding long-term arrangements.
It’s worth noting that the further you progress through the three stages, the costlier the process becomes. Therefore if you’re keen to reach a timely resolution with a minimum of stress, you should prioritise a collaborative journey with your co-parent. If you receive comprehensive and clear legal advice and adopt a more open approach, the need for a CAO could be avoided altogether.
Is Child Custody After Divorce Always Settled in Court?
It’s not necessary to go to court to establish child arrangements. Assuming that your child’s welfare would not be at risk through shared custody, the default position of the courts would be that both sides have an equal responsibility. However, much of this will depend upon how easily you can maintain an open and constructive dialogue with the other parent following divorce or separation.
Even if both parties are willing and able to reach their own agreement about custody, it remains important to enlist specialist family lawyers throughout the process. This will ensure that you receive solid guidance about your unique situation and that any agreement is fair and in the best interests of you and your child(ren). Your lawyer will then document the agreement in a (non-binding) solicitor’s letter.
Finally, if you’re engaged in dialogue but are unable to reach a consensus, your solicitor might also suggest mediation. An independent mediator will look to minimise any animosity and reach an impartial agreement that places the welfare of the family at the heart of the process. Mediation is seen by many as a final throw of the dice before pursuing a court order.
Ultimately, there is no hard and fast rule when it comes to divorce custody rights. However, adopting a collaborative approach is much more likely to lead to a quicker resolution and will stand you in good stead if the courts are required.
Lowry Legal: The Experts in Family Law
Lowry Legal is a boutique law firm that specialises in helping clients with high net worth. We understand that the breakdown of a marriage or partnership can be a testing time — especially when children are involved. Whether you’re optimistic about reaching an amicable child care agreement or are expecting a contentious situation, we have the experience and skill to adapt to your circumstances.
We’re committed to putting your best interests at the centre of our strategy from start to finish. Along the way we’ll adopt a practical and jargon-free approach from the outset to ensure that you fully understand the options at your disposal and have a clear understanding of the stages towards a resolution.
To speak to one of our professional family lawyers, contact us today, or email enquiries@lowrylegal.co.uk.
