How is Child Custody Decided in Divorce?

Are there different types of custody?

The court has wide-ranging powers when it comes to deciding where the child(ren) should live in the case of unresolvable disputes and as a result the orders it makes vary immensely from case to case.

You will probably be familiar with the terms “contact”, “sole custody”, and “joint custody”, however, whilst these terms are still referred to, they are now encompassed within what is known as a “child arrangements order.”

A Child Arrangements Order covers several situations, including:

  • Where the child lives and with whom
  • Frequency, duration, and extent of any contact between the child(ren) and the non-resident parent
  • It deals with any specific issues which are the subject of dispute, such as where the child goes to school, or whether they should be allowed out of the country for a holiday
  • Any prohibited steps a parent cannot take with the child(ren) for example, not taking them to a specific place during contact, or out of the country

Does custody have to be decided by a court?

It is preferable for parents to agree between themselves for where the child(ren) should live. This approach has the advantage of flexibility and can accommodate each parent’s situation. If an agreement can be reached, then it is advisable to have the details recorded in a written document, such as a solicitor’s letter. However, it is important to note that any such agreement is not legally binding or enforceable by law.


If you are having difficulty coming to an agreement with your ex, the next step is to attempt mediation. There are some instances where mediation will not be possible, such as where there is a history of domestic abuse, however courts are placing greater importance on parties using every alternative form of dispute resolution they can before resorting to the court.

Mediation involves a trained and independent mediator listening to both parents’ point of view without judgment to help them reach an agreement in the best interests of the child(ren). Their role is to minimise personal feeling and avoid perpetuating animosity. Mediation is not free, although if you are in receipt of a low income you may be able to get help with the costs. Otherwise, it can cost around £140 for the initial meeting and for subsequent meetings per person, per hour

If you cannot reach an agreement, the next step is to apply for a court order.

How is custody decided by the court?

The overriding principle consideration of the court in family proceedings is “what is in the best interests of the child/children?” When answering this question, the court is guided by the Welfare Checklist which contains 7 key criteria:

  • The ascertainable wishes and feelings of the child concerned (in light of their age and understanding)
  • The child’s physical, emotional, and educational needs
  • The likely effect on the child of any change in their circumstances
  • The child’s age, gender, background, and any characteristics which the court considers relevant
  • Any harm which the child has suffered or is at risk of suffering
  • How capable each of the parents are of meeting the child’s needs
  • The range of powers available to the court under the Children Act 1989 in the proceedings in question.

The court might also decide it is necessary to seek a detailed report about the child(ren)’s situation and proposed arrangements. This is done by the Children and Family Court Advisory and Support Service, also known as CAFCASS. They have specially trained officers who will consider all the circumstances of the case and work independently of the court.

Can I get sole custody of my child?

Unless the other parent agrees that the child(ren) can live with you, if you wanted to obtain sole custody you would have to apply to the court for a child arrangements order. The starting point is that care of the child(ren) should be shared between both parties, but this is sometimes not practicable, particularly where this would adversely affect their welfare.

How old does a child have to be to decide which parent they live with?

A child cannot legally decide who they want to live with until they reach 16, however if there is an existing child arrangements order in place specifying where the child should live, this may be extended to 17 or even 18.

Tips for improving your chances of getting custody

  • Be honest and realistic – if you have other responsibilities such as full-time work or caring commitments ask yourself if you really can take on the lion’s share of caring, particularly full custody.
  • Prepare a plan – set out detailed responses to any questions a CAFCASS officer or Judge might ask you. For example, where the child is going to live, what school will they attend, and how prepared you are financially.
  • Be involved in your child’s life – if the child is not living with you full-time, call frequently or use video-calling as a way to maintain contact. Attend your child’s social or educational events such as parents’ evenings, birthday parties, or sports. A court is likely to view such involvement as evidence of a meaningful relationship.
  • Keep track of contact and be prepared to give reasons for any missed contacts or other related factors, such as turning up late for collection and returns.
  • Create a proper living space for your child such as a consistent bed to sleep in so they are not sleeping in different or temporary places, such as a sofa or blow-up mattress.
  • Treat the other parent respectfully – being rude or disrespectful to the other parent, particularly if it is in front of the child, is likely to affect your chances of getting custody.
  • Respect your child’s wishes and feelings – allow them to share their thoughts and opinions without convincing them one way or the other.

Do you need help with your divorce?

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