Custody During and After Divorce

When a couple decides to divorce and there are children of the marriage a solicitor will advise you as to what will happen. Divorce is easier if you and your spouse can agree about custody of and contact with the child or children. Custody refers to who makes the major decisions in a child’s life, joint custody means that both partners have equal rights in the decision making process. Providing the couple can still communicate amicably your solicitors will help you work out which parent will have major responsibility for the children. Where both parents have parental responsibility for a child, it is more usual for them to make joint decisions.

When a mother and father separate and divorce, both parents have what is known as parental responsibility for the child. Since 2002 single fathers can apply to the courts for parental responsibility when they split up with the mother if he is registered on the child’s birth certificate along with the mother. If a couple cannot agree on the child’s living arrangements or residency, the court will make a residency order. A residency order is usually, but not always in favour of the mother. Before a residency order can be applied for, the courts may require the couple to attend mediation sessions to see if the disputes can be settled that way.

Whenever the court makes a decision regarding a child, then according to the Children’s Act of 1989, the child’s welfare must be of paramount importance. In the eyes of the law the child’s welfare is a lot more important than the wishes of either parent. If the court is called upon to make decisions regarding a child’s future then there are a number of things that they must take into account these include, but are not necessarily limited to:

  • A child’s age and gender
  • Their physical and any special needs
  • The child’s wishes if they are over a certain age
  • If the court thinks that one parent may cause harm to the child then it could prevent that parent from seeing the child other than in special circumstances. Nevertheless if the child wishes to see that parent the court must take this into account when making their decisions.
  • The court can rule on contact and access arrangements if the parents fail to reach agreement.

When the court has to decide on residency, the court will rule in favour of the mother as primary carer in more than fifty percent of cases. Slightly less than a quarter of all residency orders are made in favour of the father and in some cases joint residency may be awarded. If a court grants joint residency or custody it must first approve the arrangements agreed by the parents. Some of these issues may be settled during the divorce but in many cases problems arise over custody issues after the divorce is final, which means that the parents would need to go back to a solicitor and then to court.