The term “full custody” has had no real legal basis since before the introduction of the Children Act 1989. Over the years, the relevant terminology has gone from “residence” and “contact”, to being encompassed under one heading, namely “child arrangements”. Nevertheless, all these terms are still used interchangeably, both by the media and the general public.
Child Arrangements Orders can be subdivided into how the children share their time with each parent (contact), and which parent the child should live with (residence). There are other applications relating to specific issues and prohibited steps, however, this article focuses on the grounds for a child arrangements application “lived with” order.
How do I get the court to order what I want?
The court will only make an order if it believes it is necessary to protect the child’s wellbeing and welfare. A great place to start is to look at the welfare checklist (Section 1 of the Children Act 1989) which sets out the criteria the court will take into consideration when making its decision. This includes:
- The ascertainable wishes and feeling of the child concerned (in light of their age and understanding)
- Physical, emotional, and educational needs
- Likely effect of any change in the child’s circumstances
- The child’s age, sex, background, and any characteristics the court considers relevant
- Any harm the child has suffered or is at risk of suffering
- How capable each parent is and any other person in relation to whom the court considers the question to be relevant is of meeting the child’s needs
- The range of powers available to the court
Every point you need to raise with the court should apply to at least one, if not more, of the above criteria. It is important to be child-focussed and forward looking at all times, rather than revisiting old hurts or denigrating the child’s other parent. The court wants to understand that your proposals are realistic, as opposed to using proceedings as an arena to air grievances that have no bearing on the best interests of your child.
What grounds are likely to persuade the court to order my child lives with me?
The court’s preference, and indeed starting point, is that a child should have a relationship with both parents. However, some situations may justify the child living with one parent in particular. Here is our non-exhaustive list of the most common scenarios:
- Parental unfitness: if a parent is struggling with issues surrounding addiction, severe mental health problems, or they display little interest or capability to provide sufficient care for a child, they may be deemed a risk.
- Record of neglect or abuse: if a parent has a history of child negligence, abuse, or domestic violence, the courts are more likely to grant a live with order for one parent in order to protect the child’s welfare and safety.
- Conviction or criminal background: if a parent’s criminal past involves violent or other damaging actions, the other parent could obtain a live with order.
- Inability to provide for the child’s needs: in situations where one parent is unable to meet the child’s basic needs, such as ensuring they attend school, receive specific medical care, food or shelter, it may affect their ability to care for the child on a day to day basis.
- Intention to relocate: if one parent plans to move a considerable distance away, the court could make a live with order to the parent staying within the child’s habitual residence in order to maintain stability.
- Parental alienation: where a parent intentionally influences the child to reject the other parent, it could be seen as a valid reason for the other parent to secure a child arrangements live with order. This is very difficult to prove and is rare in practice.
- Child’s preference: based on the child’s age and understanding, the court might consider the child’s choice. However, this will be viewed in light of any influence by one parent against the other.
Each situation is unique, and the court will assess the specific circumstances before deciding where the child should live and how their time is divided with the non-resident parent.
How do I prove my ex is unfit to have our child living with them?
If you believe your ex cannot, or will not, provide your child with safety and comfort, you will need to provide evidence to the court to back up your allegations. This could be achieved by proving the following:
- A history of drug or alcohol abuse (use of drug/alcohol testing)
- A history of domestic abuse; either physical or emotional (your GP or medical records would assist here)
- A history or mental illness that incapacitates the parent to care for the children adequately
- An inability to understand the needs of the children, including the need for food, clothing and education (previous social services involvement could provide records)
- History of criminal offences and/or imprisonment
Judges are often reluctant to change where the children live, which is why strong and unbiased evidence must be provided when making any statements or allegations in court. Evidence that will strengthen your case includes photographs, videos or other media demonstrating domestic abuse or substance abuse when the children are present, text messages, voicemails, and social media messages or posts can also help prove certain behaviour.
In addition, if others have witnessed a particular incident or behaviour, you may also be able to introduce witness statements. Even if no one has seen the full extent of someone’s conduct, you can paint a clear picture to the court with multiple witness statements describing similar actions and attitudes.
Can I get full custody without going to court?
There may be circumstances which mean that it is best for one parent to have the child live with them instead of the other parent. Potentially, such an arrangement can be made amicably between the parties, either via agreement, or with the assistance of mediation.
If the child’s other parent agrees the child should live with you, in line with the “no order” principle, you do not need a child arrangements order or to attend court.