Family Law and the Law on Child Custody

Child custody is when the parents of a child do not live together because their relationship has broken down. Often there is a dispute over who should take care of the children and how often the other parent should see the children. The dispute will usually be centred on the question of where the child should live, often referred to as "custody", although in England and Wales the correct legal term is "residency".

Residence Orders and Contact Orders
This is when the parents are unable to come to an reasonable agreement about where the child should live and on what basis the other parent will have access to the child, the Court will intervene. When deciding issues relating to child custody, the Court is required to always act in the best interests of the Child and must take into account a number of important factors including:

• The risk of harm to the child
• The wishes and feelings of the child
• The child's physical, emotional and educational needs
• The effect on the child of any change in circumstances
• The capability and competence of each of the child's parents
• The age, gender, background and characteristics of the child

In a decision on custody the Court will usually grant two orders. A Residence Order is used to declare which parent the child should live with permanently and a Contact Order is used to declare the rights of the parent who is not granted residency. The Court has a wide discretion to vary the terms of a Contact Order depending on what it considers to be in the child's best interests and so the rights of the parent who is not granted residency can range from visits supervised by a social worker, to holidays abroad with the child.

Residency and Contact orders are not limited to the parents of a child, and some other classes of person who have an interest in the child's wellbeing may also apply to the court for and order, this can include; a step parent of the child and anyone with whom the child has lived for 3 years.

In England and Wales it is possible for more than one person to be granted residency and allowed equal access to the children, this is referred to as a Shared Residency Order. Shared residency is unusual because in many case the court will not consider this to be in the best interests of the child. The reasons most commonly cited for refusing joint residency are the fact that the child needs the stability of living in one home, or that one of the parents is less able to care for the child.

Nonetheless, under child custody rules, where both parents wish to be involved in the upbringing of the child, where they are both equally capable and equally able to provide for the child's needs the Court may decide that shared residency would be beneficial.

Parental Responsibility
This is different from child custody, and is the right to be involved in important decisions relating to a child's upbringing. People with parental responsibility for a child will have a say over education and religious instruction and can consent to any medical procedures involving the child.

In England and Wales that fact that you are the father of a child does not automatically give you the right to parental responsibility unless you are married to the child's mother. For unmarried fathers, parental responsibility can only be obtained if you are named as the father on the child's birth certificate, by obtaining a court order or by entering into a parental responsibility agreement with the child's mother.