When it comes to a couple separating, a top priority is always the welfare of any children involved. In many cases, this can leave parents at odds with each other and unable to agree on who should take custody.


The main concerns often revolve around who the child will live with, if the custody will be split, and how the parents will manage childcare between them. There are a few different options here, with no right or wrong answer. It all depends on what is best for the specific child in question.


What are the different types of custody?


Joint Custody:


This is a relatively common solution when a couple who have had children divorce or separate. As the name suggests, the parents share custody of the child, who will reside with both parents in their respective living quarters. With joint custody, the parents will also cooperatively make decisions about the child’s upbringing and welfare, much like when they were still married.


Sole Custody:


This is where only one parent has full custody of their child, often awarded in cases where the other parent is abusive or absent. It is naturally 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 specific familial situation.


How is child custody determined?


Nowadays, equal responsibility for both parents is seen as the preferable option, as opposed to sole custody. Having access to both parents is usually best for the child’s development.


This decision does not always need to be decided in a courtroom scenario. For the majority of divorces, parents are able to avoid going to court by agreeing on three important factors:


  • Where the child will live;


  • How much time the child will spend with each parent;


  • How each parent will financially support the child;


If the couple can agree on these things, then they should use a solicitor to make the agreement legally binding. Our family law team has much 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 be in agreement right now, your ex-partner may feel different in the future. If your agreement is broken, you may want to enforce it.


Child Arrangement Orders


If the couple cannot agree, then they will have to go to court and apply for a Child Arrangement Order (CAO). A CAO is a legal agreement between the court and parents or guardians which determines what is best for the child.


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.


While the majority of CAOs are requested by parents, others are also able to make an application. People who can apply for a CAO without the permission of the court include:


  • Parents, guardians or special guardians of the child


  • Anyone who has parental responsibility for the child


  • Anyone who already has a residence order for the child


  • Any spouse or civil partner, so long as the child is part of that family


  • Anyone with whom the child has lived with for more than three years


The court will consider the following factors when finalising a CAO:


  • 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


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 in cementing a good representation for yourself.


Have any questions? We are here to help!


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