How Do Courts Decide Who Gets Custody in Child Custody Battles?
When parents separate or divorce, one of the most emotionally charged and complex issues to resolve is the future care of their children. Understandably, both parents want what’s best for their children. But sometimes, agreeing on what that looks like can be difficult. At RDC Solicitors, we regularly support clients through these challenging situations, offering compassionate, experienced guidance rooted in family law.
In this article, we explain how courts in England and Wales decide who gets custody, which is more correctly known as “child arrangements” in the event of a custody battle, and how you can best prepare yourself if such a situation arises.
The Terminology: Understanding 'Custody' and 'Child Arrangements'
In the UK, the legal system no longer uses the term "custody." Instead, courts refer to Child Arrangements Orders. These orders set out to decide who the child will live with (formerly "residency" or "custody"), and who the child will spend time with or have contact with (formerly "access" or "visitation").
It’s important to note that the court’s primary concern is always the best interests of the child, not the convenience or preferences of the parents.
The Welfare of the Child
The Children Act 1989 is the cornerstone of child law in England and Wales. Under this Act, the child’s welfare is the court’s paramount consideration.
To help determine this, the court uses the Welfare Checklist, which includes the following criteria:
- The child’s wishes and feelings (taking into account their age and understanding)
- Physical, emotional and educational needs
- The likely effect of any change in circumstances
- The child’s age, sex, background and any other relevant characteristics
- Any harm the child has suffered or is at risk of suffering
- How capable each parent (or other relevant person) is of meeting the child’s needs
- The range of powers available to the court
These criteria provide a structured way for the court to evaluate what arrangement will best serve the child's short- and long-term well-being.
Does the Court Prefer for Mothers?
One of the most common questions we receive at RDC Solicitors is whether courts favour mothers in custody cases. Historically, there may have been a presumption that younger children were best off with their mothers, but this is no longer the legal or social norm.
Today, the court takes a gender-neutral approach. Both parents are treated equally under the law, and decisions are based solely on the child’s best interests. That said, practical considerations such as who has been the primary caregiver, stability of home life, and the ability to meet the child’s daily needs will play a significant role.
What Happens When Parents Can’t Agree?
Before a matter reaches the courtroom, the family law system encourages collaboration and resolution outside of court. Mediation is often the first step, and in many cases, it helps parents reach an agreement.
But if an agreement cannot be reached, either parent may apply to the Family Court for a Child Arrangements Order. Once an application is made, the court will likely involve CAFCASS (Children and Family Court Advisory and Support Service), who will speak with the child (if appropriate) and the parents, investigate concerns around welfare or safeguarding, and make recommendations to the court.
A judge or magistrate will then hold one or more hearings to assess the evidence and decide on the appropriate arrangements.
Factors the Court Considers in Custody Disputes
When a court is faced with a disputed child arrangement case, it will evaluate several aspects of each parent’s situation, including the following:
Stability and Routine
Children benefit from routine. The court will examine who can provide a more stable and consistent home environment, taking into account factors such as housing, employment, and support networks.
Parental Involvement and Capability
The court looks at how involved each parent has been in the child’s life so far, for example, school runs, meals, bedtime routines, medical appointments, and so on. A parent’s capacity to continue or take on these roles is crucial.
Child’s Wishes (Depending on Age and Maturity)
Children’s voices are increasingly heard in family proceedings. While a younger child may not express a view, older children (typically 11 and above) may have their wishes considered more seriously, depending on their understanding.
Allegations of Abuse or Neglect
If there are any concerns about harm, whether that is emotional, physical, or otherwise, the court will investigate thoroughly. The safety of the child is paramount and can override all other considerations.
Willingness to Co-Parent
Interestingly, courts also consider which parent is more likely to encourage and support the child’s relationship with the other parent. A parent who is hostile to contact or unwilling to communicate may be seen as acting against the child’s interests.
Shared Care Arrangements
In many modern families, the court will try to facilitate shared care where appropriate. This doesn’t always mean a 50/50 split, but it can involve both parents having significant and meaningful time with the child.
Shared care works best when both parents live reasonably close to each other and are able to cooperate in matters such as schooling, activities, and medical care.
Can a Child Choose Where to Live?
There is no set age at which a child can legally decide where to live. However, their wishes will carry more weight as they grow older. From around the age of 12–14, a child’s views are taken very seriously, although the final decision still rests with the court.
How RDC Solicitors Can Help
If you are currently facing a dispute over child arrangements, we encourage you to seek legal advice as early as possible. RDC Solicitors is here to help you understand your options, protect your position, and most importantly, prioritise your child’s future.
Contact us today on Bingley 01274 723858, Ilkley 01943 601173 or Bradford 01274 735511, for a confidential consultation with our family law team.
