Custody, care and control, and access: arrangements for children after divorce

Three separate questions

When parents divorce, the court deals with three separate questions about each child under 21:

• Custody: who makes the major long-term decisions, such as education, religion and medical treatment.
• Care and control: who the child lives with day to day, and who makes everyday decisions such as meals and bedtimes.
• Access: when and how the other parent spends time with the child.

Custody

Joint custody, where both parents share the major decisions, is the most common order. Sole custody, where one parent decides alone, is granted only rarely, for example where the parents cannot communicate at all or there has been abuse.

The court can also make a hybrid order, where one parent has custody but must consult the other on certain matters. Splitting siblings between parents is unusual.

Care and control

Care and control is usually given to one parent, with the other having access. Shared care and control, where the child spends substantial time living in both homes, is possible but less common. It tends to suit parents who live close to each other and cooperate well.

Access

The parent without care and control is usually given access. Arrangements vary: they can be flexible and agreed between the parents, or set out in a fixed schedule covering weekdays, weekends, school holidays and public holidays. Access can include overnight stays.

Where there are safety concerns, the court can order supervised access, where another authorised person must be present. Refusing a parent reasonable access needs convincing evidence.

What the court looks at

The child's welfare comes first, ahead of what either parent wants. The court looks at the child's overall well-being, not just material comfort, so the parent with more money does not automatically have an advantage. Factors include:

• who has been the main caregiver;
• the child's age, needs and current living arrangements;
• how well the parents cooperate; and
• the child's own wishes, if the child is old enough to form a view.

Agreeing arrangements

Parents who agree can set out their arrangements in a parenting plan, which can be recorded as a court order. Parents of a child under 21 must generally attend the Mandatory Co-Parenting Programme before filing for divorce. Orders about children can later be changed by applying to the court.

Speaking with a lawyer

Every family is different, and so is what will work for a particular child. A family lawyer can explain which arrangements are realistic in your situation and how to put the child's needs at the centre of any proposal.