Who Gets Custody of a Child in Divorce?

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Going through a divorce when you share children can be an emotionally challenging situation, often having the potential to cause considerable disruption to your life, particularly where child custody cannot be amicably agreed upon.

Who gets custody of a child will entirely depend on the particular situation. If divorced parents are able to make a decision between themselves and agree to a child residence arrangement, it can allow for an equal residence arrangement. This is called joint residency.

Should a child custody matter escalate to the court, certain factors will be taken into consideration when making the child arrangement order. This could mean a potentially limited child residence arrangement for one parent.

Here we discuss why child custody is no longer a term used by family lawyers, whether you need to go to court for child custody, how the court decides who gets custody of children and whether you need a solicitor.

Why is child custody no longer a term used by family lawyers?

Even though many individuals refer to where a child resides on a regular basis as ‘child custody’, this is now an outdated term that family lawyers and the courts no longer use. The term has instead been replaced with child residence arrangements, which means ‘to live with’, which has a different meaning behind it.

The reason for the wording change is due to the limited opportunity it provided parents when it came to co-parenting. The law behind child custody meant only the parent who had sole custody of the child was able to make parenting decisions.

Child residence arrangements better allows for co-parenting depending on the type of arrangement the parents have. Joint residency allows shared parental responsibility and is entitled to spend an equal amount of time with their child or children. Before any important decisions are made, both parents will be required to consult and agree with each other. Important decisions include but are not limited to changing the child’s name and moving the child out of the country.

Do you need to go to court for child custody?

Many parents presume that going to court is the only way for their custody matter to achieve an outcome, but this isn’t always necessary. Many child residence arrangements can be made through strategic out-of-court approaches, known as Alternative Dispute Resolution (ADR).

ADR is the process of settling a dispute without using court litigation and is often beneficial for divorcing spouses due to it being more cost-effective, less time-consuming and can allow those involved to maintain positive parental relationships. Most types of ADR methods parents will initially attempt are private negotiation and family mediation.

The process of private negotiation is where the involved parties will meet to discuss what they want in hopes of finding a solution between themselves. Their solicitors can be involved in this discussion.

Family mediation is a common and popular ADR method. During the process of mediation, ex-spouses will meet with a neutral trained mediator who will listen to each party’s desires. The mediation will encourage the parties to discuss and help find a resolution they can both agree on. This can occassionally take multiple sessions before an outcome is achieved.

If the child residence situation is more complicated, such as if there are safeguarding concerns, and it is not appropriate to get an outcome through private negotiation or family mediation, it may be necessary for the court to make a child arrangement order.

How does the court decide who gets custody of children?

Should a child custody case resort to court to find an outcome, there will be a number of factors that the court will take into consideration to find a reasonable solution. The court will always aim to find an outcome which is in the best interests of the child or children involved.

Examples of the aspects the court contemplates when making a child arrangement order include:

The wishes and feelings of the child
The physical, emotional and educational needs of the child
The age of the child
Any arrangements prior to the court hearing
The parent’s position, including finances
The parent and child relationship

Do I need a solicitor for child custody?

There is no legal requirement for parents to pursue the assistance of a solicitor for their child residence matter but for the best prospect of success, appointing a child custody solicitor is crucial, especially where court litigation is required.

For specialist advice and support with child residence matters, our child arrangement solicitors have considerable expertise and are ready to provide a helping hand.

Get in touch with our family law solicitors today

To speak to one of our solicitors today, please ring 0208 680 5018 or contact your local Atkins Hope office in Blackheath, Croydon, Medway or Guildford.

To ask a quick question, you can use our simple online enquiry form, and a member of the team will get back to you promptly.