Family lawyers in England and Wales don’t like the word ‘custody’, which became obsolete in 1990 with the Children Act.
Before 1990, the key terms used were ‘custody’ (who has the main rights and duties for the child?), ‘care’ and ‘control’ (where does the child live?) and ‘access’ (when should the other parent see the child?).
Despite the continuing influence of high profile US cases, such as the Brangelina split, where the partners wrangle over full custody, from 1990 onwards in England and Wales family lawyers had to re-educate our clients to say residence order and contact order.
In the last couple of years, we have had to re-educate them again, to say ‘Child Arrangement Order’, when providing Live With and Spend Time With orders.
In fact, most people still, 26 years later, talk about custody and access, and also use the term ‘main carer’, which I personally think is divisive and unhelpful.
For lawyers, the nearest to ‘full custody’ is a Live With order – that is an order where the child lives full time with that parent or person (as it is not always a parent who cares for a child).
However, courts are unwilling in the modern age to divide children’s time up in the old way of custody and access.
The court primarily wants parents to sort the issue of where the children live between them without any court orders. Thus, court orders are only made in difficult cases where the parents cannot agree about where the child should live and with whom and when the child should see the other parent.
In most of the cases I see, parents are able to resolve this issue by agreement – either directly, through lawyers, in mediation or at the beginning of a court process.
One size definitely does not fit all and parents have all sorts of different arrangements, from one week on to one week off to every other weekend, one night per week, or less. These schedules depend entirely on the ability of the parents to negotiate with each other and the free time from work that each of them has.
In some instances, often referred to as implacable hostility cases, the parents’ relationship is so poor that there is often no contact between the absent parent and the children at all. In those cases, the parent with care (usually the mother) will often end up by default with ‘full custody’.
Custody also used to mean parental responsibility.
This is nearly always shared between the parents and covers rights to information about education, health, where the child lives in the UK or the world.
It doesn’t confer a right to ‘call the shots’ day-to-day. Fathers of children in unmarried families have parental responsibility where they are named on the birth certificate after a certain date.
About Vanessa Fox
hlw Keeble Hawson partner, Vanessa Fox, marks 25 years as head of the firm’s family law department in 2016.
Collaboratively trained and a qualified mediator, she has modernised South Yorkshire Resolution since becoming chair in 2013 and is also a member of the Law Society’s Family Law Panel and the Children Panel.
She can be contacted at on 0114 290 6232 or on email@example.com.