Child custody: know your rights

If couples can’t decide between them where the children should live and how much access each parent will have, a court will have to decide. However, they will only do this if the partners have tried everything else to come to an agreement.

If you're currently in a dispute over the care of a child, it's important you know your rights and options. That's why we've created a brief guide to child care, who's entitled to it, when and what happens if you have to go to court.

What is Parental Responsibility and why is it important?

Before we go into more detail about how a residency agreement is reached and what happens if one can’t be agreed (meaning a court is forced to make a residency order) it’s important to explain a little bit about the concept of Parental Responsibility.

Parental Responsibility is a legal term which means that individual has parental rights, duties, powers and responsibilities in respect of their child. In a nutshell, they have a duty to care for and protect a child.

Who has Parental Responsibility?

If a married couple separates, both parents will automatically have Parental Responsibility for their children. Sounds obvious, right?

Hold on though, did you know that if a couple is unmarried then only the mother will automatically have Parental Responsibility? That means a father won’t automatically have any Parental Responsibility for his child if he isn’t married to the mother. However, he will generally be liable to financially support his children.

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As of 2002, an unmarried father can acquire parental responsibility by:

  • jointly registering the child’s birth with the mother; or
  • signing a Parental Responsibility Agreement with the mother (which can be done at any time).

If you’re unmarried and you want to ensure that both parents will have Parental Responsibility, then you’ll need to do one of the above. If your child has already been born, then you’ll need to speak to a family lawyer to draw up a Parental Responsibility Agreement.

What happens on divorce?

When a husband and wife with minor children divorce, they usually present a Statement of Arrangements to the court. This outlines where the child will live, what schools they will go to and how often the child will see each parent. Generally speaking, it is good practice for the person requesting the divorce to get their ex-spouse to agree to the arrangement before it is submitted to the court.

What if you simply cannot agree?

If you and your partner or ex-spouse are having trouble reaching an agreement, then it may be worth considering a mediation. A mediation is a meeting with an independent third party (the mediator) who is an expert in family disputes and will attempt to bring you to an agreement with your ex-spouse.

If you’re getting divorced then, once the divorce proceedings begin, the court will arrange a conciliation appointment. If this doesn’t lead to an agreement, the court will refer you to a Children and Family Court Advisory and Support Services officer (a CAFCASS officer). And if you still can’t make an agreement with the help of the CAFCASS officer, then they will take statements and make a recommendation to the court. The officer’s opinion is generally an important factor in the court’s decision, so it is important to co-operate with them.

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What if the court has to make an order?

If the court has to make a decision regarding the residency arrangements of a child, the child’s welfare will be their overriding consideration. In coming to a decision they will generally take into account the following factors:

  • Your child’s needs – this includes both love and affection and where the child should live.
  • If your child has suffered harm or is at risk of suffering harm – including any domestic abuse the child has been subject to.
  • The likely effects of a change of circumstances – the court will want to make the process as easy as possible for the child.
  • Your child’s age, sex and background.
  • Your child’s wishes – the older the child is, the more importance the court will place on their wishes.
  • The parents’ capabilities – this could include factors like whether either parent is an alcoholic or drug user.

Ultimately, the court has a wide range of powers available to it in coming to a decision on how residency will be split amongst parents.

Do you need a lawyer?

If you're getting divorced or splitting from your partner and are forced to consider who will take care of the children then it its generally worth having, at the very least, an initial consultation with a specialist family lawyer. They will be able to advise you of your rights and how you should exercise them.


Our Lawyers

Tom Woodward

Kate specialises in family law and has worked at two top tier family firms. She advises clients in relation to complex financial disputes, international cases, children law matters, prenuptial and post-nuptial agreements, cohabitation agreements, separation agreements and asset protection.

Tom Woodward

Rachel advises clients in a variety of matters, including divorce, financial proceedings and private children matters. She also has experience assisting clients with Inheritance Act claims.

Tom Woodward

Dominic advises clients on a wide range of issues arising from divorce and relationship breakdown. Dominic specialises in resolving financial matters arising from divorce, negotiating nuptial agreements and resolving issues between unmarried couples.

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