It’s first important to understand that whilst the term “custody” is the most commonly-used and well-known terminology around the contact with and care of a child, courts no longer refer to it in this way. “Custody” has had many names, including residency and contact orders, but courts now refer to all contact with a child as a “Child Arrangements Order”. The term “custody” is now rarely used within legal proceedings.
The equivalent of having custody of a child now would be to have a “live with order”; the other parent would have a “spend time with order”. These orders both come under the term “Child Arrangements Order”. However, for the purpose of this blog we will continue to use the term “custody”.
As you can see on our Child Law page, courts follow the Welfare Checklist when it comes to determining child custody. Family law and those who interpret it are rightly mainly concerned with the well-being, rights, wishes and feelings of the child above all else. The central point of any Child Arrangements application is “the welfare of the child is paramount”.
However, it’s important to fully understand what rights you have as a parent, what the law is regarding custody, and what you can do to help influence decisions that a court might make.
Knowing not just your rights but your responsibilities can also be a major factor in preventing disputes with your ex, and in keeping the whole process as amicable as possible.
What the law says
The 1989 Children Act defines parental responsibility as follows:
“All the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”
The mother automatically has parental responsibility and won’t lose it even if divorced. If the father was married to the mother when the child was born then he has parental responsibility as well. Following the change in the law, for children born after 1 December 2003, a father will also have parental responsibility if he is named on the birth certificate, even if he wasn’t married to the mother. And the father has it if he, or he and the mother, registered a parental responsibility agreement with the court or there was a court order.
If both parents are deemed to have responsibility then neither the mother nor the father have the automatic right for their child to live with them. In the past, the courts more often favoured the mothers, but with men often now more involved with childcare and more women working, courts often see joint custody as the way forward.
Even so, many fathers, rightly or wrongly, believe that they mothers will automatically be looked on more favourably after as separation or divorce. There’s also currently a campaign to change the law to bring in a legal assumption that the mother and father will share parenting of their child or children.
In the meantime, whether you’re a mother or father, it’s important that you get child custody advice at an early stage rather than waiting until the situation becomes complicated or acrimonious.
Our child law solicitors appreciate that every case is different. We will always listen carefully to what your situation is, along with your needs and wishes, in order to provide you with guidance on the best way forward.
Parental responsibility – agreements and orders
There are many other legal issues around the issue of parental responsibility. For example, just because you don’t have it doesn’t mean you’re absolved of all responsibilities towards your child – you may well have a duty of care in the form of child maintenance. You have rights too – for example, to apply for certain court orders.
Unmarried fathers can also, with the consent of the mother, obtain a Parental Responsibility Agreement that gives you parental responsibility.
If the mother refuses to allow the unmarried father to be registered or registered on their child’s birth certificate, or refuses to sign a Parental Responsibility Agreement, then he can apply for a Parental Responsibility Order.
Child custody legal advice – book a free consultation
As you can see, the law is complex and there are many variables that need to be taken into account. We’re here to help you clarify your options, and to decide the best path to take. That’s why we offer a free initial consultation of 30 minutes with one of our child custody lawyers. (Follow the link to view our Family Law team)
Our main office is in Aldershot, Hampshire, but we also have offices in Manchester, Cambridgeshire, the Isle of Wight and Somerset – whichever is most convenient for you.
To book your consultation, please email [email protected] or call 01252 268 168.