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Who gets custody of the child in a divorce?

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Nowadays the courts in England and Wales accept the benefits of joint custody but each case is different and there are lots of considerations that can influence the court’s decision.

What are my rights to custody of my child?

Your rights arise from having parental responsibility

Parental responsibility is defined in the Children Act 1989 as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child’.

In most cases, both parents have parental responsibility.

Because one aspect of parental responsibility is to provide housing for the child, if you have parental responsibility you automatically have the right and the duty to provide housing.  This is why there are often disputes about where children live.  If you don’t have parental responsibility, then you do not have that right.

Who has parental responsibility?

Mothers always have parental responsibility, as mothers are always listed on the birth certificate

A father will have parental responsibility if:

  • He was married to the mother at the time of birth;
  • Unmarried fathers whose children are born after 1st December 2003 will also have parental responsibility if they are named on the child’s birth certificate; or
  • Both parents or the father have registered parental responsibility with the court.

If you don’t have parental responsibility you may wish to apply for it by making an application to the family court.

If both parents have parental responsibility, then there is nothing in law that states a mother or father has the automatic right for the child to live with them. The main consideration of the court is the welfare of each child (see the welfare checklist by linking to the child custody page).

Joint custody

In the past, custody was usually given to mothers, as they traditionally stayed at home looking after the children. However, the courts are starting to adapt to the changes in the ways families live, where mothers may have full-time jobs and fathers are more involved with childcare. As a result, the courts are moving towards the idea of joint custody.

Lots of fathers still don’t get an equal opportunity to care for their children though and feel that the chances of getting custody are still stacked against them.  Fathers should not assume that a hearing will be fair.

Types of Custody

When it comes to deciding where a child will live, the court has wide-ranging powers so orders can vary from case to case. Although the terms ‘sole custody’, ‘joint custody’ and contact are still used by a lot of people, the court now makes an order called a Child Arrangement Order (CAO).

See more about CAOs here.

For more information on child custody, contact and child arrangements, see more our advice pages in our family law advice hub.

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