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Who should a child live with after divorce?

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How custody is decided

By a court

Nowadays the court tries to promote equal responsibility for both parents as it’s considered best for a child. That results in both parents having custody and the child two homes. For the child, the benefit is that the time they spend with each parent is more equal, although this can vary between cases.  The disadvantage is that the child may not feel they have a proper home where they feel settled.  They may be unhappy not to be near their best friends as much as if they lived in one place.

In the past, custody was almost always given to mothers, as they were the ones who stayed at home looking after the children. However, gradually the courts are starting to adapt to the new ways families live, where mothers have full-time jobs and fathers are more involved with childcare. In these circumstances joint custody is much more realistic. An order now made by the court is no longer called ‘custody’ but instead is a Child Arrangement Order (CAO)

The CAO decides:

  • Who the child will live with;
  • How the child has contact with both parents;
  • Any specific issues that are disputed, such as schooling;
  • Any prohibited steps a parent cannot take with the child, such as leaving the country.

By agreement

Remember, though, that these issues do not need to be decided by a court and most parents avoid court by agreeing:

  • Where the child will live;
  • How much time the child will spend with each parent;
  • How each parent will financially support the child.

If you can agree these things, then a solicitor can make your agreement legally binding. If things start to go wrong you’ve then got a legal agreement to rely on.

By mediation

If you cannot reach an agreement without help, you still don’t have to go to court. You could try mediation. Mediation is when you try to resolve your disputes with the help of a neutral third party. This can be quicker and much cheaper than going to court.

But if you really cannot reach an agreement, then you will have to ask the court to decide by applying for a CAO. Try to avoid this if you can because there is no guarantee that you will get the outcome you were looking for.  Who really wants a judge, who doesn’t know you, to decide such personal arrangements? Give the decision to a judge and it is out of your hands.

What will the court have in mind when making a CAO?

A CAO is not about what’s best for you. The only consideration is what is best for the child.

The Children Act 1989 requires the following (the ‘welfare checklist’) to be considered by the court:

  • The wishes and feelings of the child (taking into consideration their age and understanding);
  • The physical, emotional and educational needs of the child;
  • The possible impact on the child if their circumstances change;
  • The child’s age, sex, background and any characteristics that the court considers relevant;
  • Harm the child has suffered or is at risk of suffering;
  • How capable each parent is of meeting the child’s needs.

An officer from the Children and Family Court Advisory and Support Service (CAFCASS) is likely to be asked by the court to make an assessment and provide a report with recommendations.

The outcome of going to court is that the power to make decisions is out of your hands and in the hands of strangers. Remember that before launching an application.

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