Divorce and child custody

How do we decide child 'custody' after divorce or separation?

The legal term 'custody' does not exist in England. When parents separate, it is presumed that they are able to agree the arrangements for their children between themselves. This includes whether the children should live with one parent or both parents (at different times), and what time they should spend with the parent that they may not be living with. There is no need to have this agreement 'blessed' by the court or any other authorities. 

If, however, the parents are unable to reach their own agreement, then they can apply to the court (but see also Do I have to go to court to decide where our children will live after divorce or separation?) for a 'child arrangements order'. This is a court order setting out who the children should live with (whether primarily with one parent, or both), and/or spend time with.

In these FAQs and answers, we use 'England' as a shorthand for 'England and Wales' because England and Wales share a single legal system. Scotland, meanwhile, is a different legal system and has different rules for many aspects of family law.

We have also chosen to talk about 'marriages' most of the time (which may be between either an opposite or same-sex couple). Unless we say otherwise, what we have said is also true of civil partnerships (which may also be between an opposite or same-sex couple).

These FAQs (and our website more generally) contain general information based on English law as it stands at the date of publication, but they do not constitute legal advice, nor are they tailored to any couple or family's particular circumstances. Whilst we endeavour to ensure it is accurate and up to date, website users should seek appropriate legal advice before taking or refraining from any action based on the content of the website. We would, of course, be willing to assist with this, and you can contact us here.

Any pricing information is similarly general. Our clients' relationship with us is governed by the terms of the engagement letter sent to them at the beginning of their instruction.

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Get in touch

Our team of divorce law solicitors are on hand to help and support couples who are thinking about divorce.  Speak to one of our experts confidentially by phoning Sarah on the number below, or complete our online enquiry form and we will contact you directly.

Divorce and family services

+44 20 7597 6384 Email Sarah

More children FAQs

Can children's arrangements be changed as circumstances change?  Can I change my child's surname now that I am divorced? Can I move abroad with my child after divorce or separation? Do I have to go to court to decide where our children will live after divorce or separation? Do I need the other parent's permission to take my child on holiday abroad?
Does one parent have to pay child maintenance to the other following separation? How can we minimise the impact of divorce or separation on our children? How do we make decisions about schooling and other important things now that we are separated? How does a court decide living arrangements for children after divorce or separation?
My former partner will not let me see my child. Should I get a child arrangement order? What is a typical set of arrangements for a child when their parents divorce or separate? What is 'parental responsibility'? Will our child have to play any part in court proceedings about him/her?