In the UK, child custody law determines who should be responsible for the care and charge of a child, after divorce and separation. However, child custody law is now more commonly referred to as residency, indicating where the children’s main residence is, following a parental break up.

Parenting plan for child care

Put simply, parents are encouraged to find a satisfactory solution together on what will happen to the children and no intervention from the courts is needed at all. This is because during the divorce process, the divorcing couple needs to file a document which lists all the children and where they will live.

Children Act 1989

However, if the divorcing parents turn to the courts because they cannot reach an agreement even after using mediation, the court might decide on their behalf and consequently make the orders needed to protect the children in accordance with the Children Act 1989.

It must be highlighted that in all residency cases, the welfare consideration, or best interests, of the child is the paramount consideration.

Which parents get to keep the children?

At this juncture, it is important to remember that:

• Most court cases end amicably with either agreed or joint residency as the outcome;
• Access and maintenance payments from the non-resident parent are also taken into consideration; and
• In disputed cases each parent is individually assessed before a decision on which parent is given custody of the children is made.

Joint residency is considered to be the preferred solution, being in the best interests of their children. Many parents neglect to consider this fact and err on the side of what suits them.

Another point that is often disputed, is whether children are better brought up by mothers rather than by fathers. It was made clear by the courts that although there is still a presumption that babies are better off with mothers, with regard to other children there is no principle or presumption in favor of mothers or fathers. The rule in relation to babies is partly based on the benefits of breastfeeding. On the whole however, the reality is that children on separation stay primarily with their mothers in almost 92% of cases.

Another issue is how the gainful employment and jobs of parents would affect the residency of their children. It seems now that a working parent will be only slightly disadvantaged over a non-working parent. However, there are cases where the court preferred to make a shared residence order so that both parents were able to continue employment rather than giving sole residence to either the mother or the father, because that would mean the parent granted the sole residence would have to give up his/her job which would cause financial disadvantages that could affect the children’s upbringing.

It bears noting that the choice of joint residency reflects the changes in society and takes into consideration work that mothers do outside of the home and a more hands-on approach of childcare by fathers. By allowing both parents to have an equal share in the physical care of their children, all legal rights connected to responsibilities and obligations to children are divided.

When can the children themselves decide?

If the question of who the child is to live with has to be resolved through court proceedings, then the courts will start to place weight on a child’s wishes when they are considered competent to understand the situation. This can be around the age of 12 or 13 but varies on the circumstances. The wishes and feelings of a child below the age of 11 may be taken into account but will not usually carry such a weight. When a child reaches the age of 16, they are legally able to decide where they wish to live unless there is a residence order or child arrangements order specifying living arrangements, which lasts until a young person is 18.

For more information and legal advice visit Talk2Solicitors.co.uk to get expert advice from Family Solicitors.

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