How Does a Court Decide Which Parent gets Custody in a Divorce?

Most parents want to know if their children will live with them after their separation or divorce before they make the final decision on whether to separate. Children law solicitors understand just how important it is for parents to get an idea on how the Court decides which parent gets custody in a divorce when parents can't agree on what is the best parenting arrangement for their children. In this article our children law solicitors take a look at children law court applications and the Court decision making process.

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For children law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form .

Do I need a child custody order?

The first question to ask yourself is ‘do I need a child custody order if I separate?’. That’s because the Court will only make a children law order if it is necessary to do so because parents can't agree on where the children should live after a separation or divorce. If you can agree on the parenting arrangements then there isn’t likely to be any need for an order and the Court will be reluctant to make one.

If you think that you can't agree on child custody you may be able to reach a compromise through solicitor negotiations or family mediation.

What are child custody options?

You can apply to the Court for a child arrangement order. The order can say that the children will live with you and the contact arrangements with the other parent or if both you and your ex-partner should share care of the children.

There are numerous ways that a Court can decide on how much time children should spend with each parent after a separation or divorce but some of the most common are:

• Residence to one parent and the other parent gets contact on alternate weekends for the full weekend and mid-week contact
• Residence to one parent and the other parent gets contact every weekend but not for the full weekend as the residential parent also needs to spend quality time with the children
• Shared parenting with the children’s care either being split equally or with one parent providing more of a home base

In addition to the regular schedule of parenting time, the child arrangement order should also specify holiday contact and special occasion contact, such as birthdays. With holiday contact the Court will not normally specify dates (as school holiday dates change each year) but instead the Court will set out the principle of holiday contact ( such as one half of all school holidays) leaving parents to negotiate the holiday dates each year to suit their holiday plans and work commitments.

When the Court makes a child arrangement order the Court has to look at your family circumstances and assess what order best meets your child’s needs. In carrying out that assessment the Court has to put your child’s welfare as the paramount consideration of the judge. The Court also has to look at a statutory check list of factors to help the judge decide on the right parenting arrangements under a child arrangement order.

How does a Court decide on custody?

The Court will make a decision based on what it thinks is best for your child rather than what is best for you or your ex-partner. In reaching that decision the Court will consider the statutory welfare checklist:

• The ascertainable wishes and feelings of your child, in light of his or her age and understanding and
•  Your child’s physical, emotional and educational needs and
• The likely effect on your child of any change in his or her circumstances and
•  Your child’s age, sex, background and any characteristics the Court considers relevant and
•  Any harm which your child has suffered or is at risk of suffering and
• How capable each parent is, and any other person in relation to whom the Court considers the question to be relevant, is of meeting your child’s needs and
• The range of powers available to the Court.

Every child custody case is different

Every child custody case is different because every child is an individual and every family has its quirks. Each factor has to be looked at carefully in light of your child’s circumstances. Many children say they want to live with both parents but equal parenting may not practically be possible if it would involve a long commute to school. Other children say that they want no contact with one parent because they blame that parent for the marriage breakdown. However, the child’s views may be influenced by parental alienation or because they don’t like a new step parent. Alternatively, the child may be worried about contact because of domestic violence in the parental relationship and not want their parent to have to come into contact with their other parent during contact handovers.

A Court may decide that despite a child’s stated wishes it is best for the child that he or she sustains a meaningful relationship with both parents.

When the Court makes the decision on the best type of child arrangement order to make, it will focus on the child’s needs rather than yours. You or the other parent may be desperate to have a mid-week overnight contact visit because you or they think it is too long to wait to see your child at the weekend but the Court will look at how your child would settle and the logics of the school commute. For some children, a mid-week visit that does not involve an overnight stay is what the child wants because they want routine and struggle to settle if there is a mid-week overnight stay. For other children, the mid-week overnight contact is a welcome visit as it then isn’t too long a gap before they get to see their other parent.

 Presenting your case for child custody 

If you want the Court to make a child arrangement order that says your child should live with you then it is best that you present your case for child custody by focussing on what your child is like and why your preferred child arrangement order meets your child’s needs. That can be tough to do as it is often easy to talk about the negative aspects of the other parent’s parenting skills without actually linking how that supports your preferred parenting plan. For example, if the other parent has issues with alcohol, or works too hard, how does that affect your child and their behaviour ?

Whether you want to try to agree a parenting plan or need to apply for a child arrangement order it always best to sit down and marshal your thoughts and make sure that you are looking at things from the point of view of your child when you come to present your case to your ex-partner or in children law Court proceedings.

Online and London Family Law Solicitors and Children Lawyers

For help with a child arrangement order application or children law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form .