Children & Divorce – Child Custody

Marriage breakdown often affects children more than their parents. Divorce is a time of considerable emotional turmoil for children and parents will often have differing views of what is best for the children and specific concerns for their future welfare.

It is vital that in such circumstances you have legal representation which is comprehensive, sympathetic and competent to ensure that the best interests of the children are catered for.

We will work with you at achieving the best arrangements for your children and divorce, including addressing issues of their safety, if that is a concern and, their financial welfare and support arrangements as well as ‘contact orders and arrangements’ and assistance in deciding where the children should live and which parent should have day-to-day care of the children.

Our work deals with all aspects of visitation rights, mothers rights, fathers rights, grandparents rights, children and divorce and, children’s rights.

Insofar as possible, we will seek to reach an amicable arrangement with the other parent. However where agreement can not be reached, we will apply to the court on your behalf to settle the issues.

There may be any number of issues, such as an application for a Residence Order, or for the level of Child Maintenance to be set or protection from a threatening parent or an application for contact by a parent who is being denied access to their child. We can also assist in matters of adoption and child welfare.

Examples of issues which can arise are:

  • maintaining a relationship with your child after divorce
  • if you fear that your children will be taken away from you to another part of the country or even abroad, we can apply to the court for a Prohibited Steps Order
  • Child Abduction
  • if you are having difficulty seeing your child, we can negotiate on your behalf and seek an Order for Contact from the courts
  • if you were not married when your child was born we can assist you in obtaining a Parental Responsibility Order.
  • child maintenance
  • child custody, called a Residence Order
  • financial disputes which may arise as a result of family breakdown where there are children involved
  • disputes surrounding paternity

Often there will be disputes as to which parent the children should live with or how often they should see the absent parent.

These are matters which, once brought to the attention of the courts, will be investigated fully and, orders will be made to safeguard the children’s best interests. 

The court will always consider that upholding the rights of the children is paramount to any disputes that parents may have and the court will seek to act in the children’s best interests. In deciding what is in the best interests of a child, the court will apply The Welfare Checklist.

In cases where there has been domestic violence, the courts will study closely the issues and act in the interests of the children.

Parental Responsibility

Both parents automatically have parental responsibility for a child if they were married when the child was born.

This means that each of them is legally recognised as having all the rights and duties that parents normally have in relation to a child and that generally they both have to be consulted about major decisions in relation to the child’s upbringing e.g. in relation to education, medical treatment and any change of the child’s name.

If the child’s parents were not married, only the mother automatically has parental responsibility unless the child was born after 1st January 2005 AND the father’s name was entered on the child’s birth certificate, in which case both parents share Parental Responsibility.

Unmarried parents can voluntarily sign a parental responsibility agreement giving the father parental responsibility or he can apply to Court for an order giving it to him.

See our dedicated page for more information on Parental Responsibility


If a child’s parents cannot agree which of them the child should live with, either parent can apply for a Residence Order. This is now more commonly referred to as a ‘Living With Order’. 

The Court will ask an officer from the Children and Family Court Advisory and Support Service (CAFCASS) to meet with the child and both parents and to assess the situation and provide a report.

The Court has to make a decision on the basis of what is in the best interests of the child. In trying to decide what is best for a child, the court will always be applying The Welfare Checklist.

Contact Orders:

If you can’t agree on the arrangements, you can ask the courts to decide the matter. We will be able to advise you on the best way of doing this, without letting matters relating to children get tangled up in any financial disputes or divorce.

The Children Act 1989 is the main Act of Parliament dealing with family disputes about children. In family law, what used to be called ‘custody’ and ‘access’ are now known as ‘residence’ and ‘contact’.

The Children Act says that the child’s welfare is the paramount consideration when the courts consider any question in relation to the upbringing of a child. Therefore, the court will apply what is known as the ‘welfare checklist’ to help it make its decision.

The Welfare checklist is basically a list of what courts deem to be the most important issues, indicating a child’s needs, wants and bests interests.

See our dedicated page for more information on Contact Orders

The welfare checklist looks at the following issues

  • The wishes and feelings of the child (considered in the light of the child’s age and understanding)
  • The child’s physical, emotional and educational needs
  • The likely effect of any change in the child’s circumstances
  • The child’s age, sex, background and any characteristics which the court considers relevant
  • Any harm which the child has suffered or is at risk of suffering
  • How capable each of parent is of meeting the needs of the children.

An independent Child and Family Reporter (called a CAFCASS Reporter) may be asked to help you resolve the dispute or to help the court decide.

The court will not make any order relating to a child unless it is satisfied that making an order would be better for the child than not making an order.

In situations where the child’s welfare is unclear and the parents disagree on fundamental issues, the court will make interim orders, intended to protect the child in the most secure environment, until a final decision can be reached. Cases such as this are sadly all too common and it is in such a situation where good legal representation is paramount.

Most family disputes can, however, be resolved without using the courts and we can help you to make suitable arrangements through the Mediation Service and Family Mediation, while ensuring that the welfare of the children comes first.

Check out our dedicated page for more information on The Welfare Checklist.

We are committed to seeking an amicable settlement in respect of child welfare matters wherever possible. If you need help in any aspect of Family Law or Children Act matters, contact us

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