The word “custody” is quite an old-fashioned way of looking at what living arrangements work best for your child or children. Whereas legal dramas popularised the idea of “getting custody” of the kids, what happens in reality is somewhat different.
When couples separate, the issue of where the children live is often a thorny issue. Sometimes couples can resolve this between themselves or via mediation/other alternative dispute resolution. But when couples can’t agree, court proceedings are often the last resort.
If you seek for a court to decide that the children live with you, then you can make an application to court for a Child Arrangements Order. The application is asking the court to make a decision – an “order” – on who the children live with and spend time with.
The old notion of custody is now replaced with the idea that children either “live with” a parent or they “spend time with” a parent. Where the children predominantly live with one parent rather than the other, this routine is often called a “live with, spend time with” order; the child lives with one parent and spends time with the other. Alternatively, it may be decided that the children live with both parents where it is clear and evident that the children have two separate homes – this is a “live with, live with” order.
But how do we get to a situation where the court makes this order? The court will list the matter for an initial hearing (First Hearing Dispute Resolution Appointment, or FHDRA) where the court explores what further information it may need. At this hearing, the court will have a letter from Cafcass, who will confirm whether safeguarding checks – checking the police databases – have been completed against the parties and what they consider to be an appropriate next step.
The court will consider what further information it needs to make a decision, then list the matter for either a Final Hearing, or for Direction Resolution Appointment (DRA) if it thinks it will need to consider any further information before making a final decision. Further information can include, for example, GP reports, alcohol/drug testing, psychological assessments or further reports from Cafcass.
The court will almost certainly want to see and hear witness evidence from both parents. They will see the evidence through a witness statement, and hear the evidence through both parents speaking at a final hearing. The court will then make a decision.
In making its decision, the court will give consideration to the Welfare Checklist contained within Section 1(3) of the Children Act 1989. Ultimately, the court will make a decision based on what they believe, having reviewed all the evidence, is in the best interests of the child. It is less about either parent “getting custody” than it is about the court looking at what is in the best interests of the child.
The final order of the court will specify whether the child lives with each parent or whether the child spends time with each parent. In exceptional cases, the court will order that the child neither lives with nor spends time with one of their parents.