Custody, residence, access and contact with children

Current terminology

The term ‘child custody’ is now mainly used in international cases only. Residence and contact orders (previously known as access orders) have been replaced by child arrangements orders, although their purpose is almost the same as residence and contact orders. 

Child living arrangements

In England and Wales, if the child’s parents cannot agree living arrangements for the child, the matter is left for the courts to decide. 

On the whole, disputes about who a child lives with end amicably with either an agreed order in favour of one person, or confirmation of a shared care arrangement (formerly known as joint or shared residence), which allows a child to spend an agreed amount of time with both parents. Where residence is disputed, the court will assess both parents before it reaches a decision over who will care for the child or children. The court’s governing principle is to see that the best interests of the child or children are served.

Child Arrangements order

A child arrangements order is an order regulating arrangements about any of the following:

  • Who a child will live with, spend time or otherwise have contact with
  • When a child will live with, spend time or otherwise have contact with any person.

When a court decides whether to make a child arrangements order, and how the order should be structured, the child’s best interests are its primary concern.

Can non-parents apply for care of a child or contact with a child?

Disputes about who will care for a child are usually between the child’s parents, but there are circumstances where a third party (such as a grandparent) may seek the care (formerly called residence) of a child, say, in the event of a parent’s death or incapacity. Usually a court will deem that it is in a child’s best interests for a parent to have care of the child. In rare cases a parent may be completely barred from having contact (previously called access) to their child. However, the courts may change this decision at any time and the parent may reapply for contact at any time.

In some circumstances it is also possible for a third party such as a grandparent to apply for contact with a child. There is a growing awareness of the stability that a grandparent can bring to a child’s life when his/her parents are separating.

Can child care arrangements be challenged at a later date?

Arrangements for care of the child can be challenged but substantial evidence about why it is necessary to change the existing arrangements must be submitted. Factors that may lead to a change in a child’s residence may include the relocation of a parent or a change in the residential parent’s circumstances, meaning that he or she can no longer provide a stable and secure home for the child.

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