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Child custody rights – What courts consider in custody cases

Child custody rights – What courts consider in custody cases

When relationships break down, one of the most emotionally charged aspects of separation involves decisions around the care of children. Understanding child custody rights is essential for any parent or guardian navigating this process. In England and Wales, the term “custody” has evolved and is now legally referred to as “child arrangements,” but the principles remain the same. Parents often ask, “what do courts consider in custody cases?” – and the answer lies in a range of statutory factors centred around the child’s welfare.

This article will explore what English and Welsh courts consider when determining family court child custody arrangements, offering clarity to those facing this challenging chapter in their lives.

Background: What is meant by child custody in England and Wales?

Although commonly referred to as child custody, the law in England and Wales now uses the term child arrangements order under the Children Act 1989. This legal order outlines who a child lives with, spends time with, and has contact with.

  • Residence – Where the child lives.
  • Contact – The time the child spends with the non-resident parent.
  • Parental responsibility – The legal rights, duties, and responsibilities a parent has in relation to their child.

Importantly, both parents usually retain parental responsibility, regardless of who the child lives with.

The paramount principle – The welfare of the child

The courts in England and Wales operate under one guiding rule: the child’s welfare is paramount. This principle is enshrined in Section 1 of the Children Act 1989 and governs all decisions relating to child custody law.

To determine what’s in the child’s best interest, courts apply the Welfare Checklist, which includes:

  • The child’s wishes and feelings (considered in light of their age and understanding).
  • The child’s physical, emotional, and educational needs.
  • The likely effect of any change in the child’s circumstances.
  • The child’s age, sex, background, and characteristics.
  • Any risk of harm or abuse.
  • The capability of each parent to meet the child’s needs.

How the courts assess parental capability

In determining how custody is decided in England and Wales, the court scrutinises each parent’s ability to provide a stable, nurturing environment. The focus isn’t really on financial capability but rather on:

  • Emotional support and bonding with the child.
  • Consistency in routines (e.g. school runs, bedtimes).
  • Willingness to cooperate with the other parent.
  • Evidence of substance misuse, neglect, or domestic abuse.

The court may request input from Cafcass (Children and Family Court Advisory and Support Service), who conduct home visits and interviews to assess parenting capacity.

Types of Child Arrangements Orders

There are several outcomes to a family court child custody case:

  • Live With Order (Residence): The child lives primarily with one parent.
  • Shared Care Order: The child splits time between both parents.
  • Spend Time With Order (Contact): The non-resident parent has scheduled time with the child.

Each arrangement is tailored to the child’s needs and shared care does not necessarily imply a 50/50 split.

Factors that weigh heavily in disputes

During a custody battle , courts often face conflicting testimony. Specific factors that influence the outcome include:

  • Allegations of abuse or neglect.
  • Parental alienation.
  • Child’s wishes.

Courts aim to ensure children maintain meaningful relationships with both parents – unless there are compelling reasons not to.

Mediation and alternatives before court

Before attending court, most separating parents are required to attend a Mediation Information and Assessment Meeting (MIAM).

Benefits of mediation:

  • Faster and less expensive than court.
  • More control over the outcome.
  • Reduces adversarial conflict.

Case example: Navigating shared custody after divorce

Case example: Anna and James, divorced parents of two children aged 9 and 12, could not agree on who the children should live with. Anna worked from home and wanted full residence, while James, who lived nearby, argued for shared care.

After Cafcass assessments and input from the children, the court granted a Shared Care Order. The children now live with each parent on alternate weeks.

Expert insight: What family solicitors say

“In situations which do not involve abuse or neglect, it is generally in the best interests of children to have significant involvement with both of their parents.”
— Lucy Simpson, Head of Family & Children, Fosters Solicitors

For professional support, explore our Family Law Solicitors services.

Pros and drawbacks of court-decided custody arrangements

Pros:

  • Neutral decision-making.
  • Legal enforcement.
  • Protection in high-conflict or abusive situations.

Drawbacks:

  • Costly and time-consuming.
  • Can exacerbate conflict.
  • May feel rigid or impersonal.

Future trends and practical advice

The future of UK child custody law is increasingly focused on flexibility and co-parenting. Digital tools are making shared care more practical.

Recommendations:

  • Keep communication child-focused.
  • Attend parenting classes or mediation.
  • Seek legal advice early.

For more guidance, visit: Citizens Advice – Child Contact and Residence

FAQ

What do courts consider in custody cases in England and Wales?

Courts consider the child’s welfare above all else, guided by the Welfare Checklist in the Children Act 1989. This includes the child’s wishes and feelings, their needs, risk of harm, and each parent’s ability to meet those needs.

Who gets custody of a child in England and Wales?

There is no automatic preference for mothers or fathers. The court bases decisions on the child’s best interests, which may lead to sole or shared care, depending on the circumstances.

What is a child arrangements order?

A child arrangements order sets out who a child will live with and how much time they will spend with the other parent. It replaces the old terms ‘custody’ and ‘access’.

Can a child choose which parent to live with?

A child’s views are considered, especially from age 12 upwards, but the final decision lies with the court based on the child’s welfare.

Do both parents have parental responsibility?

Yes, in most cases both parents retain parental responsibility regardless of living arrangements, unless a court orders otherwise.

Expert legal support

When parents or other relatives cannot agree arrangements in respect of children that they care for, or with whom they wish to see – there is often a need for urgent legal advice and support. Our experienced and empathetic Family Law team aims to deliver child-focused solutions to the following types of child-related issue:

  • Child arrangements.
  • Removal of a child from a resident parent, grandparent or other carer.
  • Failure to return a child to a resident parent, grandparent or other carer.
  • Child abduction.
  • Acquiring parental responsibility.
  • Any other specific issue or difficulty relating to a child.

If a dispute cannot be settled through negotiation or mediation, then our specialists will represent you in an application to the court to resolve the matter. If you require more advice about disputes involving children, please contact us for a confidential no obligation chat.

This article was produced on the 23rd May 2025 for information purposes only and should not be construed or relied upon as specific legal advice.

 

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