Custody, care and control, and access: arrangements for children

Three separate questions

When parents separate, the court looks at three things:

• Custody: the right to make major long-term decisions, such as education, religion and significant medical treatment.
• Care and control: who the child mainly lives with and who handles daily care.
• Access: the time the child spends with the parent who does not have care and control.

The child's welfare comes first

Under section 125 of the Women's Charter, the welfare of the child is the paramount consideration. Welfare is read widely. It includes the child's physical needs as well as emotional, mental, moral and religious well-being.

The question is not which parent deserves the child, or which parent earns more. It is which arrangement best serves this particular child. Mothers and fathers stand on equal footing.

Custody

Joint custody is the most common order, and it can be made even when the parents do not get along well. It means both parents consult each other on major decisions. It does not mean the child spends equal time in each home.

Sole custody is unusual. It is generally reserved for cases such as abuse, or where cooperation between the parents has broken down so badly, even after mediation and counselling, that it harms the child.

Care and control

Usually one parent has care and control and the other has access. Shared care and control is possible, but it is not automatic and there is no presumption that it is always best. It depends on whether moving between two homes works for the child.

Factors the court may consider include:

• The child's current arrangements and the need for stability.
• The child's relationship with each parent, and who has been the main caregiver.
• The child's age and needs, and keeping siblings together.
• Whether the parents can cooperate.
• The child's own views, where the child is old enough to form them.

Access

Access can cover weekdays, weekends, school holidays and public holidays, and sometimes overseas trips. It may be reasonable access (worked out flexibly between parents) or set out in fixed terms. Where there are safety concerns, access may be supervised.

If parents cannot agree, the court may ask for reports from professionals, such as custody or access evaluation reports, to help it understand the child's situation.

Changing an order later

Custody, care and control, and access orders can be varied under section 128 of the Women's Charter when circumstances change. The court balances any change against the child's need for stability. Parents who are not divorcing can apply for orders about their children under the Guardianship of Infants Act.