When parenting disputes arise, we often hear the phrases ‘Mothers always get custody’, or ‘the courts favour mothers’, and if you’re a father, you’ll be reduced to a ‘weekend dad’. It is a common misconception that the family courts favour mothers or that the chances of a father getting 50 50 custody in the UK are low. Historically, mothers were more likely to be the primary carers, and court outcomes often reflected that reality. However, family law has evolved significantly as parenting roles have changed and families have become more diverse.
The family courts in England and Wales do not prioritise one parent over the other simply based on gender. The welfare of the child is paramount to the court’s consideration. There is no rule that says a mother is entitled to half or all a child’s time, or that separated parents must divide a child’s time equally. In fact, the court’s focus is not on what a parent is entitled to but rather what is in the best interests of the child.
Child arrangements
People commonly talk about ‘custody rights’, ‘access’, and ‘visitation’ however, the family courts no longer use these terms. This terminology has changed, and the focus has shifted to the concept of child arrangements; the practical arrangements for where a child lives, and when they spend time with each parent/caregiver. Custody previously referred to where a child would live after parents separated and was often linked with winning and losing. One parent would be seen as a winner, gaining custody rights whilst the other would be reduced to visitation rights. This approach exacerbated conflict between parties, making it more difficult to reach a resolution which could be particularly damaging for the child involved.
Child arrangements moved the emphasis away from questions of parental ownership and towards shared responsibility for the child’s upbringing. A child arrangements order can specify how a child may share their time with each parent, and if a child lives with both parents, it will specify the time the child spends with each parent within a living arrangement.
The court will consider a range of factors when determining child arrangements. These include:
- the child’s ascertainable wishes and feelings, taking account of age and understanding,
- their physical, emotional and educational needs,
- the impact of any change in the child’s circumstances,
- the child’s age, sex, background and relevant characteristics,
- any risk of harm,
- each parent’s ability to meet the child’s needs, and
- the range of powers available to the court.
An order will only be made where the court considers it to be necessary/in the child’s best interests. The court’s approach is to determine which arrangement will best promote the child’s welfare both in the present and as their needs develop over time. The practical reality of any proposed arrangement will also be important: a shared-care arrangement, including an equal division of time, is only likely to be appropriate where each parent can meet the child’s day-to-day needs in a consistent and workable way. Where a child has lived primarily with one parent/care giver for a significant period, the court will consider the impact of any change to those arrangements carefully.
Fathers should not assume that the outcome is predetermined or be discouraged from seeking a meaningful role in their child’s life. The court will consider the individual circumstances of each family and what best serves the child’s welfare. Things have shifted over time with more fathers being involved in the day-to-day parenting of their children and we see fathers securing shared care arrangements that reflect this.
Conclusion
This can be an emotional process, but fathers should not be disheartened. While it may previously have been more common for mothers to care for children for the majority of the time, there is no automatic entitlement or presumption in favour of either parent. The legal system has evolved to reflect modern society, with the welfare of the child remaining paramount and central to the court’s consideration. Each case is assessed on its individual circumstances, with decisions based on the evidence before the court rather than assumptions about parental roles or any fixed outcome for mothers or fathers.
Seek advice
If you are facing a child arrangements dispute, obtaining early legal advice can help you understand how the court is likely to approach your case, clarify where you stand and, where possible, help reduce the risk of unnecessary conflict. For any advice, please get in touch with our Family Law team.
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