The grounds for full custody of a child in the UK
Separating from or divorcing your ex-partner can be a very stressful and emotional time, particularly where the split is not amicable or there is an ongoing custody battle for your children.
In most child custody cases, a court will look to preserve the best interests of the child, which usually means ensuring they can continue to enjoy a relationship with both of their parents. However, there are some specific circumstances where one parent may be granted full custody of their child or children.
In this article, we outline these grounds and the legal process for gaining full custody of your child in the UK.
Please note that the phrase ‘child custody’ is no longer used in UK legal settings; instead, the term used is ‘child arrangements’ and a judge will hand down a ‘Child Arrangement Order’ to outline how the child will share their time with each parent and who they should primarily live with.
The default stance
Before we move onto the legal grounds to seek full custody of a child, let’s briefly look at the default position that a court will take when looking where to place a child whose parents are separating.
Essentially, the court will make a decision that serves the child’s welfare and best interests. As such, shared custody is usually preferred to ensure that the child can maintain a relationship with both parents. In complex cases or where there are disputes, the court may refer the case to Cafcass (the Children and Family Court Advisory and Support Service) or the social services, who will meet with the separating parties and child(ren) and prepare a report on their findings.
A court will not take into account such factors as what might be most convenient for you or your ex, especially if it is to your child’s detriment.
Grounds for full custody
As we’ve indicated above, a court will deviate from the default position of shared custody if it believes it’s in the child’s best interests.
For example:
Your child’s safety is at risk
If one partner has a record of emotional or physical neglect or abuse, the court is likely to hand down fully custody to the other parent.
They have a criminal record
If your ex-partner has been charged with any violent crimes or is in prison for committing a crime, then you are likely to be awarded full custody.
Issues with mental health or addiction
If one partner is experiencing severe mental health issues, problems with addiction or any other issues that may render them unfit to parent your child, this may be a ground for full custody.
Inability or unwillingness to parent
If one parent is unable (or shows themselves unwilling) to look after your child’s day-to-day needs, for example ensuring they attend school, take any medication, and go to doctors’ and dentists’ appointments, the other might be awarded sole custody.
Parental alienation
This happens where one parent influences their child to reject the other parent. If this is discovered and can be proven, it may be seen as a valid reason for the child to live with the other parent full time.
What your child wants
Depending on your child’s age and their ability to express themselves, your child’s opinions and preferences will be taken into account. If they express a desire to only live with you, or with your ex-partner, this will be considered by the court. However, a court will usually be very careful when considering a child’s preference because of the risk of parental alienation.
How to seek custody of a child
So, what is the actual process of your child to live with you full-time?
- Attend mediation
It is a legal requirement to attend a Mediation Information and Assessment Meeting (MIAM) before you can take your divorce case to court. There are certain exceptions to this rule, for example in domestic violence cases or where there are serious child protection concerns.
During this meeting, you will sit down with a specially qualified family mediator, who will see if they can help you resolve your issues without taking them to court.
- Apply for a Child Arrangement Order
It costs £255 to apply for a Child Arrangement Order and it is best to do so in consultation with your solicitor. This is because you must provide lots of information about yourself, your child and your familial situation to help you make your case for full custody to the court, which can be a complex process without professional assistance.
Information you must provide includes:
- Who your child currently lives with
- If your child is known to social services
- Evidence to support your case for full custody (including documents, photographs, witness statements and – with the court’s permission – expert assessments).
- Wait for your first hearing date
Once all the paperwork has been submitted, court proceedings can begin. You will receive a first hearing date, which all the child’s guardians, as well as a Cafcass officer must attend (either remotely or in person).
At the first hearing, the court will try to obtain an understanding of the main issues at play and how these might be resolved.
If the parties come to an agreement, these child arrangements will be enshrined in a legally binding Child Arrangement Order and you, and your ex will have to abide by this decision.
- Attend further hearings/a final hearing
If you cannot come to an agreement, there may need to be more hearings and a Cafcass officer may have to spend time with you and your child to gather further evidence for the court. The judge will make a decision on what split they believe will provide the best environment for the child and that will meet their various physical and emotional needs.
If the court believes that the child’s best interests will be served by living with one parent, then this will become a stipulation of the Child Arrangement Order.
Please note that a court may award you as the primary carer but may still award your ex-spouse visitation rights. The nature, timing and duration of these visits will be outlined in your Child Arrangement Order.
What percentage of fathers get full custody in the UK?
In the vast majority of cases, the mother is awarded sole or main day-to-day custody of their child(ren) following a divorce. According to government statistics, 87% of ‘parents with care’ (i.e., those granted sole or main day-to-day custody) were female in the three year period between 2021 and 2023, whilst 89% of non-resident parents were male.
However, don’t despair – a father can obtain sole custody just like a mother can, if he can show he is committed to doing what is best for his child – not himself – and that his desire for full custody will help achieve that aim. It is crucial to seek expert Family Law advice to ensure that you have the right support and guidance in place throughout the whole process, from the initial consultation to the final court hearing.
Let us help you do what is best for your child
At Woodfines Solicitors, our legal experts have vast experience in helping parents prepare for court hearings and ensuring that they have the evidence they need to back up their arguments to a judge. We understand that these proceedings come at an extremely difficult time in our clients’ lives, so we do everything in our power to make the process as smooth and manageable as possible, so that you, your ex-spouse and any children can move on with your lives as quickly and with as little animosity as possible.
