When a couple decides to separate or divorce, a top priority should be the welfare of any children involved. In a high number of cases, this factor can leave parents at odds with each other and unable to agree on who should take custody of the child. Child custody is therefore a key consideration for many separating couples.
The main concerns often revolve around who the child will live with, if the custody will be split, and how the parents will be able to financially support the children between them. If the parents can agree on these factors, then it is far easier to avoid the courtroom. It is important to note that there are a few different options here, however there is no right or wrong choice. When it comes to child custody, what matters most is the best outcome for the child.
So, what are the different types of custody? And what happens if a couple can’t agree on child custody? Keep reading to find out more.
Types of child custody
Joint Custody
Joint custody is a relatively common solution when a couple who have had children decide to divorce or separate. As the name suggests, the parents share custody of the child, who will reside with both parents in their respective homes. With joint custody, the parents will also cooperatively make decisions about the child’s upbringing and welfare, much like when they were still married.
Equal responsibility for both parents in the form of joint custody is seen as the preferable option, as opposed to sole custody. Having access to both parents is usually seen as best for the child’s development. This allows the child to have easy access to both parents by making them properly involved in the child’s life.
Sole Custody
Sole custody means that only one parent has full custody of their child. This is often awarded in cases where the other parent is abusive or absent and is therefore a rarer solution than joint custody. The child’s other parent (sometimes known as the “non-custodial” parent) will have no physical nor legal custody rights over the child. They may be entitled to periods of visitation, however, (though these visits are often supervised, especially in situations involving domestic violence or child abuse).
Legal Custody vs Physical Custody
Legal custody is the authority to make decisions surrounding the child’s livelihood, for example which schools they go to. Physical custody differs from legal custody in that it involves the determination of where a child lives on a day-to-day basis. Parents can have both physical and legal custody, or in some cases they will have only one of these, and of course in other rare cases they will have neither. It all depends on the circumstances specific to that family.
How is the type of child custody decided?
If the couple can agree on who the child will live with, whether the custody will be split, and how the parents will be able to financially support the children between them then they should use a solicitor to make the agreement legally binding.
Our family law team has lots of experience when it comes to this and can guide couples every step of the way. Getting the agreement properly drafted and executed is always for the best, as while you may feel you are in agreement about your child right now, your ex-partner may change their mind in the future. If your agreement is broken, you may want to have the ability to enforce it.
Child Arrangement Orders
If the couple cannot agree on custody, they will have to go to court and apply for a Child Arrangement Order (CAO). This is the most sensible outcome in cases where an agreement cannot be reached outside of court.
A CAO is a legal agreement between the court and parents or guardians which determines what is best for the child. However, before applying to a court you must usually show that you have attended a meeting to decide whether meditation is the right course of action for you and your partner.
The CAO will officially determine where the child lives, what contact the parents can have with the child and any other specific needs the child may have.
What factors do the court decide on for a Child Arrangement Order?
The court will take a number of factors into consideration when deciding on the finalisation of a child arrangement order. In terms of the child themselves, these include the following:
- The feelings and wishes of the child (taking into consideration their age and understanding)
- The physical, emotional and educational requirements 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 in the past or is at risk of suffering in the future
- If each parent is capable of meeting the child’s needs
Additionally, the court must presume that involvement of each parent (of some direct or indirect kind but not any particular division of a child’s time) in the life of the child concerned will further the child’s welfare. That presumption applies if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm. The court must also be satisfied that making an order is better for the child than not making an order at all.
How can parents increase their chances of getting custody?
Firstly, it is clear that good parents should be doing most of the below points by default. We understand that with work and external factors things can often get in the way of family life, but the best effort should always be made for the benefit of the child wherever possible.
Ultimately, the court will decide on what is best for the child, but they will certainly look kindly on the following:
- Showing a strong relationship between you and the child: Going the extra mile to bond with your child, such as taking an interest in their extracurricular activities, attending their school plays or helping with homework.
- Attending key events such as birthdays or religious ceremonies.
- Make your home safe and appropriate for children.
- Pay child maintenance on-time (if this has been arranged).
- Show the other parent respect. This can go a very long way towards cementing a good representation for yourself.
Our family law team have extensive experience when it comes to child custody agreements and child arrangement orders, and will be able to assist you with agreements which are in the best interest of your child following a divorce or separation. Contact us today.
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