Child Custody – 7 common Q&As

When a relationship breaks down, whether you are married or not, agreeing arrangements for any children involved is often one of the most emotive elements to be resolved. Our Family Law specialist, Rachel Macwilliam, answers 7 common questions on the topic of child custody. 

  1. What does custody mean?
    English Law no longer uses the term ‘custody’ but now refers to ‘child arrangements’ or ‘residence’ to describe where the child will spend most of their time.  A child will usually either live with the father or the mother, they are called the ‘primary carer’. When a child spends equal amounts of time with each parent, this arrangement is known as ‘shared care’ of the child.
  2. Is it necessary to go to court to determine who the child will live with?
    No. Parents can decide together which parent the child will live with and how often the other parent will see the child.  If parents can decide between, them then there is no need to formalise in a court order, although you may wish to ask the court to produce an order recording the agreement for your own peace of mind. 
  3. What happens if parents cannot agree about where their child should live?
    If parents are unable to agree between themselves where the child should live, there are 3 main options:
    -Family mediation (mandatory before an application for a court order is made unless exemptions apply)
    -Instructing solicitors to help them reach an agreement
    -Go to court to determine arrangements / residence for the child
  4. How do courts decide who a child will live with?
    The courts will use something called a ‘Welfare Checklist’ to help them decide who the child should live with.  The Welfare Checklist considers the following questions:

    -The age of the child and whether the child has any special needs;
    -The impact of any change in current arrangements on the child;
    -Which parent is most financially and physically able to care for the child;
    -Mental health of each parent;
    -Whether there are any concerns about either parent (known as safeguarding concerns) such as domestic violence, involvement with the police, or drug / alcohol abuse.

    After considering these questions the court will decide which parent the child should live with and what contact arrangements should be put in place for contact with the other parent (known as a ‘Child Arrangements Order’).
  5. Does a mother have more chance of getting ‘custody’ than a father?
    No.  Courts make their decision purely on what they see as being in the best interests of the child.  The law itself does not impose bias but there has been a view in the past that courts made decisions based on bias existing in society in terms of whether the mother or father is the main caregiver.  However, as workplace roles have changed so have the roles of parents.  This is now taken into consideration by the courts and no assumptions are made.  Decisions are made only on what is in the best interests of the child.
  6. At what age can a child decide which parent they want to live with?
    Parents can choose to let their child decide where they wish to live. However, if the question has to be resolved through a court, then the court may begin to take into account a child’s wishes when they reach the age of 12 or 13, sometimes younger, depending on the situation. When a child reaches the age of 16, they can legally decide where they want to live unless there is already a child arrangements order in place.  These are effective until the child turns 18 and becomes an adult.
  7. What rights to see the child do other family members have?
    Grandparents and other close family members sadly do not actually have an automatic right to see the child. Having said that, family courts do recognise the important role that relatives (particularly grandparents) have to play and it is unusual for the court to prevent grandparents from making an application under the Children’s Act 1989 to spend time with the child, unless there is evidence that it would not be in the child’s best interests. 

Get in touch
If you find yourself needing legal advice around child custody arrangements, the friendly and experienced Family Law team at Penderlaw are here to help.  You can reach us on 01872 241408 or email