Introduction
Child custody: When relationships break down, this is often the biggest concern for parents.
Who will they live with? How often will they see the other parent? What if one parent wants to move away? These are difficult questions, and the answers depend on many factors.
This guide explains everything you need to know about child custody in the UK. We’ll cover legal rights, how courts make decisions, what to do if you’re involved in a custody dispute, and how to create a parenting plan that works for everyone. Our aim is to help you understand your options and make the best choices for your child.
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What Is Child Custody?
Child custody refers to the legal arrangements for a child’s care after their parents separate.
But. In the UK, the term “custody” is not officially used in law anymore.
This is important. The term has had no legal basis since 1989. Despite this, it’s still commonly used by parents, by society, as well as on TV and in movies. If you hear someone talk about the family court they’ll almost always talk about `custody’.
I’m not just being pedantic saying this. There’s some very good reasons that you need to know this. I’ll go into it later.
Instead, courts talk about “child arrangements.” These arrangements can decide where a child lives and how they spend time with each parent. To complicate matters I need to point out that an order doesn’t have to say where a child lives at all too.
So what do people mean when they talk about child custody? As it has no legal meaning, it can mean different things to different people. But there is a general consenus about what that is:
- Where the child lives – This is often referred to as “residence.” One parent may have sole residence, or both parents may share it. Even `residence’ is an old term however. The correct one is `lives with’.
- Contact with the other parent – This includes visits, overnight stays, and other forms of communication like phone calls or video chats.
In an ideal world, separating parents don’t go to court. They make arrangements between themselves and that’s the end of the story.
If it goes to court, things can still be settled by agreement between parents, with the court turning the agreement into an order. However, if parents cannot agree, a court may need to make a decision with a decision being imposed on both of them.
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Do Parents Have Automatic Rights to Child Custody?
Parents don’t have `rights’. They have responsibilities.
I hear this misconception every single day. I’ve seen people arguing the law on this, debating the morality, what the reality of this and more. But I’m telling you. If you’re in a family court case for your children and you are talking about your `rights’ it is only going to damage your case. Even if the court doesn’t notice you’re making your child case about you, it’s a virtual guarantee your ex’s solicitor is going to make sure everyone hears that.
Parents (usually) have Parental Responsibility (PR). In the UK:
- Mothers automatically have Parental Responsibility from birth.
- Fathers have Parental Responsibility if they are married to the mother when the child is born or if they are named on the birth certificate.
- Unmarried fathers can gain Parental Responsibility through a formal agreement with the mother or a court order.
Parental Responsibility means having a legal duty to care for and make decisions about a child’s welfare. However, it does not automatically give a parent the right to custody. Nor does it give a parent a right to spend time with their own child.
Parents with parental responsibility are expected to work together to make important decisions about their child’s upbringing, including education, healthcare, and religious choices. Refusing to do so can impact their child’s wellbeing and in those cases the court can intervene.
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How Do Courts Decide Child Custody?
If parents cannot agree on arrangements, the family court can decide. The court’s primary concern is the child’s welfare. Judges consider factors outlined in the Welfare Checklist.
The welfare checklist is a set of factors that the family court in England and Wales considers when making decisions about the welfare of a child. This Checklist is found in section 1(3) of the Children Act 1989 and includes the following:
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The ascertainable wishes and feelings of the child (considered in light of their age and understanding) – The court will take into account what the child wants, considering how mature they are.
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The child’s physical, emotional, and educational needs – This factor focuses on the overall well-being of the child, including their basic physical needs, emotional support, and educational development.
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The likely effect of any change in the child’s circumstances – The court considers how changes (e.g., moving home, changing caregivers) might impact the child.
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The child’s age, sex, background, and any characteristics the court considers relevant – This takes into account factors like the child’s cultural, religious, or linguistic background and personal attributes.
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Any harm that the child has suffered or is at risk of suffering – The court examines whether the child has experienced or might experience harm, including abuse or neglect.
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How capable each parent (or other relevant person) is of meeting the child’s needs – The court assesses the abilities of the parents or other caregivers to provide for the child’s needs.
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The range of powers available to the court – The court considers what orders it has the power to make and how these orders might impact the child’s welfare.
This checklist helps ensure that the court makes decisions with the child’s best interests as the primary concern.
There is no legal presumption in favour of either parent. The court aims to ensure the child maintains a meaningful relationship with both parents unless there is a risk to their safety or wellbeing. The court also considers the practicality of arrangements, including the distance between parents’ homes, work commitments, and the child’s routine.
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Types of Child Custody Arrangements
There are several possible child arrangements, depending on what is in the best interests of the child. But court orders don’t have to make an order concerning custody/residence at all.
Sole Custody (Residence)
One parent has full responsibility for the child’s home and daily care. The other parent may still have contact, but the child primarily lives with one parent. Courts grant sole residence when they determine that living with one parent full-time is in the child’s best interest.
Shared Custody (Shared Residence)
The child spends significant time with both parents. This does not always mean a 50/50 split, but it does mean both parents are actively involved in daily care. Courts encourage joint residence where possible, as it helps children maintain strong relationships with both parents.
Contact Arrangements
If one parent has sole residence, the other may have scheduled contact. This can include:
- Regular visits – including overnight stays.
- Indirect contact – phone calls, video chats, or letters.
- Supervised contact – if there are concerns about the child’s safety.
Contact arrangements should be practical and in the child’s best interests. If disagreements arise, mediation or a court order may be required.
An order will often contain several parts. It can say who the children live with. When they spend time with each parent. What they must do. It can say what they mustn’t do. And more.
But you need to be aware that a court order doesn’t have to contain all of them.
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What Happens in Custody Disputes?
When parents disagree on custody arrangements, mediation is usually the first step. Mediation helps parents find solutions without going to court. It is required before making a court application, except in cases involving domestic abuse or urgency.
Although it’s not mediation itself that is required. A MIAM (a Mediation Information Assessment Meeting) is the bare minimum. These not mediation sessions. As the name suggests, it’s a chat about mediation – how it works, what happens, etc. – and is attended by each party separately.
A mediator can fill in the relevant part of the form you need to complete (usually a C100) once one of these have been completed before it is sent to the court. It’s not uncommon for a mediator to urge anyone doing this to give mediation a go before making an application.
There’s a sad fact however. Since mediation because mandatory in most cases, the amount of mediation has declined sharply. Even more sad is the reason behind this. That reason is that a party who feels they have what they want has little motivation to attend.
Court Proceedings
If mediation fails, a parent can apply to the court for a Child Arrangements Order. This order determines where the child lives and how they spend time with each parent.
The process involves:
- Filing an application – Using Form C100 (and a C1A form if abuse is a factor in this case).
- First hearing – The judge reviews the case and may encourage further mediation.
- A `Section 7′ Report (by CAFCASS or social services if they’ve been previously involved with the children) that examines any welfare concerns that have been identified.
- Fact-finding hearings – If there are serious disputes or concerns about welfare in a child custody case. Not every case has these.
- Final decision – The court issues an order based on the child’s best interests.
This is the general form. Family law cases in private proceedings (that is, a disagreement between parents) on average last 18 months and take about 5 hearings. Between the list above there can be review and/or directions hearings to enable the court to see how things are going, work out the best way forward and more.
Cases almost never close at the first hearing either. But they can go on for a large number of hearings for a whole variety of reasons. If you have good advice this is less likely to be a problem however.
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Can a Parent Deny Contact?
A parent cannot stop the other parent from seeing their child without good reason. If they do so without an order they’re acting with no legal basis.
Strictly speaking, any parent believing contact is harmful (e.g., due to domestic abuse or neglect), should apply to the court to restrict or supervise contact. Technically, denying contact without a valid reason could lead to legal consequences. In reality this is unheard of.
A more typical scenario is that a parent withholding contact will do nothing and wait for the other parent to make an application to the court – at which point they’ll state their reasons for doing so.
The implication for a parent whose child is prevented from seeing them is clear – they need to make an application as soon as possible to avoid a lengthening status quo of no contact.
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Can a Parent Relocate with a Child?
It depends. Any parent wishing to do this should get the consent of all parents with Parental Responsibility for the child.
If they do, that’s the end of it.
If not, an application may be needed. The court considers how the move affects the child’s relationship with both parents before making a decision.
This is also true if a parent wishes to move `out of jurisdiction’. The UK is made up of 3 of these. They are:
- England & Wales
- Scotland
- Northern Ireland
If a child lives within one of these jurisdiction, it’s not permissable to move them out of it without the permission of everyone who has PR for the child or else an order saying they can.
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What If a Parent Breaches a Custody Order?
If a parent does not follow a court order, the other parent can apply for enforcement. Breaking a court order is Contempt of Court.
The court may:
- Issue warnings, fines, community service or even a prison sentence.
- Adjust the existing order.
- In serious cases, consider a change in residence.
There’s a big `but’ here. If you’re looking for the first of these three options the court has, you’re probably going to be disappointed. The court has the powers to order these, it’s almost unheard of. The Ministry of Justice publishes quarterly Family Court Statistics, but these reports do not provide detailed breakdowns of enforcement actions such as imprisonment, fines or community service orders.
Asking for this to happen is usually going to backfire too. It’s common for a parent asking the court to order this to face accusations of wanting to punish their ex partner while depriving their child of a relationship with a mum or dad, or adversely affecting them financially.
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Do Grandparents Have Custody Rights?
In the same way parents don’t have rights, nor do grandparents.
But they can apply for permission to seek a court order for contact or residence if it is in the child’s best interests.
The process is completely identical as it is for parents (see above!), aside from having to fill in additional form – a C2 form. This form is merely to seek permission for an application to go forward.
If a grandparent is making an application, the C2 form will be used by the court to assess:
- The grounds for the application and whether it is justified.
- Whether it meets threshold criteria for intervention.
- Whether granting the application would serve the child’s best interests.
A court will often will think an application by a grandparent for child custody who has been involved in a child’s life and then prevented has more merit that someone who, say, has had zero involvement for years and then suddenly makes an application.
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Legal Support for Child Custody Cases
Seeking legal advice can help parents understand their rights and responsibilities. Free resources include:
- Citizens Advice
- Family Mediation Council
- Cafcass (Children and Family Court Advisory and Support Service)
- Free introductory Sessions offered by solicitors
- Family Law Clinics (often as part of university law departments)
- Parenting and Gender-based Charities
- Online Resources (like this website!)
You need to be aware however that none of these are substitutes for the paid variety of support. They’re often limited in terms of scope, time and geography whereas someone you’re paying will be more flexible.
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Can I get Legal Aid?
Legal aid is generally available in family law cases concerning child custody where:
- There is evidence of domestic abuse or child abuse involving the other party.
- The case involves social services (public law cases), such as care proceedings.
- You are applying for a non-molestation order or an occupation order (protective orders).
- There is a risk of your child being taken out of the country without your consent.
- In some cases, if the court deems it in the child’s best interests.
Financial Eligibility (Means Test)
For most private family law matters, legal aid is means-tested, meaning your income and savings will be assessed.
- If you’re on Universal Credit, Income Support, or a low income, you may qualify.
- Your savings, property, and disposable income are also considered.
- Even if you earn above the threshold, you might still get partial legal aid or be required to contribute.
How to Apply
You can check if you qualify by using the government’s legal aid eligibility calculator or by contacting a legal aid solicitor.
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Problems with Legal Aid
Legal aid solicitors can provide crucial support to those who cannot afford private representation. But the system has several shortcomings that can affect the quality of legal assistance people receive.
One of the most significant issues is the strain on legal aid lawyers due to heavy caseloads and limited funding. With fewer resources, solicitors often find themselves handling an overwhelming number of cases. This can lead to delays, rushed preparation, and difficulties in maintaining regular communication with clients. Many people seeking legal aid struggle to get updates on their cases, leaving them feeling frustrated and unheard.
Another common problem is the restricted availability of legal aid solicitors.
Not all law firms take on legal aid work for child custody cases. Those who do can be in high demand, making it difficult for clients to find representation. The limited choice also means that if you’re unhappy with their solicitor’s performance, switching to a different one may not be straightforward. Some clients feel as though they have been assigned a solicitor rather than being able to select the best one for their specific needs.
The quality of service can also be inconsistent.
Many legal aid solicitors are dedicated professionals. But the high workload and funding limitations mean that some cases are handled by less experienced lawyers. Or teams where cases are passed around rather than managed consistently by one person. This lack of continuity can be especially frustrating in complex family law matters where consistency is key.
Additionally, the constraints of legal aid funding mean that some cases only receive partial representation. For example, a client may receive assistance with paperwork but not have legal representation in court, leaving them to navigate hearings on their own.
Another major issue is the rigidity of the legal aid system. Because solicitors must operate within the strict guidelines of the Legal Aid Agency, they may have limited flexibility in how they approach a case. This can lead to a more procedural, rather than strategic, way of handling legal matters. It also leads to less time devoted to negotiation or out-of-court settlements. The funding restrictions also make it difficult to obtain additional expert reports, which can be critical in certain cases, particularly where evidence is needed to support a parent’s position in family court.
With this in mind, increasing number of people who are eligible to legal aid look for alternatives. Including McKenzie Friends.
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Creating a Parenting Plan
A parenting plan is a written agreement that outlines how parents will share responsibilities. It includes:
- Living arrangements
- Holiday and special occasion plans
- Decision-making responsibilities
- Communication between parents
A well-structured parenting plan can help reduce disputes and provide stability for the child.
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Conclusion
Child custody in the UK is about finding the best outcome for children. The law encourages both parents to be involved, but every case is unique. Whether you are negotiating arrangements or facing a custody dispute, understanding your rights and options is crucial. If in doubt, seek professional advice to ensure the best for your child.
Understanding child custody laws and making informed decisions can help ensure that your child continues to have a stable, loving environment, even after a separation.
