Introduction to child custody

If you are separating from your partner or getting a divorce, then the question of where your children will live, and how often each partner will see them, are tough decisions to make.

Everybody’s situation is unique, and there is sometimes no right or wrong answer. The interests of the child are paramount in family law. What matters is that the children are safe, secure and happy.

What used to be called ‘custody’ and ‘access’ are now called ‘residence’ and ‘contact’.

According to online factsheets prepared by Resolution, the family lawyers’ association, the court will look at what is in the best interests of the child, and will apply a ‘welfare checklist’, looking at: the child’s wishes and feelings; their physical, emotional and educational needs; and their age, sex, background and any other relevant characteristics.

It also looks at: the likely effect of any change in the child’s circumstances; any harm which the child has suffered or is at risk of suffering; and how capable each parent is of meeting the child’s needs.

A Cafcass officer may be asked to help you decide what to do, or to help the court decide. ‘Cafcass’ is also known as the Children and Family Court Advisory Support Service. It is an independent organisation that promotes the welfare of children and advises family courts.

Residence and contact

A residence order decides where the child is to live, and with whom the child is to live. The granting of a residence order to someone automatically gives that person parental responsibility for the child.

The child can not have their surname changed or be removed from the UK for more than one month unless everyone with parental responsibility agrees or there is a court order.

Residence orders last until the child is 16, although they can last longer than this.

A contact order requires the person with whom the child lives to allow that child to visit, stay or have contact with, a person named in the order. Contact can be by letter or video as well as face-to-face. They can be specific, naming times and dates, or more open. They can apply to parents or to siblings or wider family members. In some cases, contact must be supervised by a third person.

Contact orders last until the child is 16, unless there are exceptional circumstances.

Breaking a contact order can be a contempt of court, a criminal offence with serious consequences.

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