Child arrangements: what used to be called ‘custody’

child riding on a parents shoulders

If you've been searching for child custody as part of your divorce planning, you're in the right place, but you’re using the wrong word.

England and Wales stopped making custody orders in 1989. The Children Act replaced them with residence and contact orders, and in 2014 those were replaced again by a single thing called a child arrangements order. No English or Welsh court has granted custody of a child in over thirty years.

Everyone still refers to it as child custody though, so here's what it's actually called, how it works, and what happens if you can't agree.

If you're frightened of the other parent, or there's been abuse, the rules are different and they matter - skip to that section. Don't work through the mediation steps first. Check our support page too for more details.

What is a child arrangements order?

A child arrangements order determines two things: who the child lives with, and who they spend time with. Those are the official, actual terms, and the come straight from the statue. Section 8 of the Children Act defines a child arrangements order as one “regulating arrangements relating to […] with whom a child is to live, spend time, or otherwise have contact, and when a child is to live, spend time or otherwise have contact with any person.”

You might hear people say "lives with order" and "spends time with order", but they're two parts of the same thing.

The change of language was deliberate, because "residence" and "contact" sounded like one parent won and the other visited. A child arrangements order is meant to read as a description of a child's life rather than a prize.

Two other orders exist under the same part of the Act and people often need one of them instead:

  • A prohibited steps order stops the other parent doing something specific - taking the child abroad, moving them to a new school, changing their name.

  • A specific issue order settles a single disagreement - which school, whether they have a medical treatment, whether they can go on a particular trip.

You may not need all three - lots of people don’t.

Do you need a court order at all?

It’s not always necessary to have a court order when it comes to determining custody of children - and the law tends to actively discourage it, in favour for parents settling it between them.

Section 1(5) of the Children Act is known as the no-order principle: a court "shall not make the order ... unless it considers that doing so would be better for the child than making no order at all."

Most separated parents in the UK never go near a court. They agree arrangements between themselves, write them down, and change them as the children get older, which is what happens anyway, because a nine-year-old's week and a fifteen-year-old's week look nothing alike.

A written parenting plan is not legally binding, and that's usually fine. What it does is remove ambiguity, which is where most conflict starts. Put in the boring things: handovers, holidays, who does the school run, how you'll tell each other about illness, how much notice for a change.

Go to court when you genuinely can't agree, when the other parent won't engage, or when a child's safety is at stake.

How does a court decide child arrangements?

Child court arrangements are determined by three different things:

The child's welfare is paramount. Section 1(1) puts it in exactly those terms: "the child's welfare shall be the court's paramount consideration." This is the deciding factor.

There's a presumption that both parents being involved is good for the child. Section 1(2A) requires a court to presume, "unless the contrary is shown," that a parent's involvement furthers the child's welfare. Note what it actually says, because this is the most misunderstood provision in family law: "involvement" means involvement of some kind, direct or indirect. It does not mean equal time. It can be rebutted - that's what "unless the contrary is shown" is doing.

And there's a checklist. Section 1(3) requires the court to have particular regard to:

  • the child's ascertainable wishes and feelings, considered in light of their age and understanding

  • their physical, emotional and educational needs

  • the likely effect on them of any change in circumstances

  • their age, sex, background and any characteristics the court considers relevant

  • any harm they have suffered or are at risk of suffering

  • how capable each parent is of meeting their needs

  • the range of powers available to the court

Read that list as a description of what an application has to speak to. It doesn’t matter if someone was unfaithful or if they decided to leave. That is irrelevant in this process.

Is 50/50 custody the default in the UK?

No, 50/50 custody is not the default. There is no starting presumption of equal time anywhere in the law of England and Wales.

This is a common misunderstanding, and it comes from misreading the presumption of involvement above. The presumption is about involvement, which the Act expressly says can be direct or indirect. It is not about hours.

Shared arrangements are common and courts order them where they work. What makes them work is practical, not principled: the two homes are close enough for one school run, the parents can communicate about logistics without it becoming a fight, the pattern suits the child's age, and the child has a settled life rather than a fortnightly relocation.

A court can make a shared "lives with" order naming both parents even where the time isn't equally divided because the label and the timetable are separate questions.

What is parental responsibility, and is it the same thing?

No, parental responsibility is not the same as custody, and conflating them causes a lot of unnecessary panic.

Parental responsibility is the legal authority to make decisions about a child, such as schooling, medical treatment, religion, name, travel.

Child arrangements are about where the child is and when. You can have one without the other.

More than two people can hold parental responsibility. It isn't a scarce resource, and one parent having it takes nothing from the other.

Who has it automatically:

  • Mothers, from birth.

  • Fathers married to the mother at the time of birth.

  • Unmarried fathers named on the birth certificate, for births registered from 1 December 2003 in England and Wales. The dates differ elsewhere: 4 May 2006 in Scotland, 15 April 2002 in Northern Ireland. Before those dates, not automatically.

  • Second female parents, on the same basis as fathers, where the legal conditions are met. See our guide to same sex divorce if this is relevant to you.

If you don't have parental responsibility, you can get it by agreement with the other parent, or by applying to the court.

If you are going to court, this can have an impact on which order you get. Under Section 12 of the Children Act, if a child arrangements order names a father as someone the child is to live with, and he doesn’t already have parental responsibility, the court must also make an order giving it to him. If he’s named only as someone the child spends time with, the court must decide whether it would be appropriate, and can grant it based off of that; it’s a decision, not an automatic consequence.

The same rule apples to apples second female parent who is a parent under the Human Fertilisation and Embryology Act 2008.

So for an unmarried father without parental responsibility, the difference between a ‘lives with’ order and a ‘spends time with’ order isn’t only about nights in the week. One option hands you parental responsibility automatically, the other makes it a question to be answered by the court.

An unmarried father who obtains a "lives with" order acquires parental responsibility along with it.

Losing a child arrangements case does not remove your parental responsibility. It is very rarely removed at all.

Child custody & domestic abuse

Child custody follows a different process when there has been domestic abuse, to help ensure the safety of the child or children.

You do not have to try mediation first. A MIAM - a Mediation Information and Assessment Meeting - is normally compulsory before applying for a child arrangements order, but domestic abuse is the first of sixteen exemptions, set out in the Family Procedure Rules. You claim it on the application form with evidence.

The evidence is broader than people expect. It does not require a conviction, or a court case, or the police. It includes:

  • a police caution, charge, arrest or conviction

  • a protective injunction, including a non-molestation order

  • a finding of fact by a court

  • a letter from a GP or other health professional

  • a letter from a domestic abuse support worker, a refuge, or a specialist charity

  • a letter from a local authority

Two of those you can arrange this week, should you need them.

The same evidence usually unlocks legal aid, which is otherwise almost unavailable for private children matters.

And the court's own rules change. Practice Direction 12J governs any children case where abuse is alleged. It requires the court to ensure that any order "protects the safety and wellbeing of the child and the parent with whom the child is living", to consider holding a fact-finding hearing to establish what happened, and - before making any contact order - to be satisfied that the safety of both the child and the parent they live with "can, as far as possible, be secured before, during and after contact", and that the resident parent "will not be subjected to further domestic abuse".

Where a court makes an order despite findings of abuse, it has to explain why that order does not expose the child to risk. This matters because it tells you what to put in front of the court. Not that the other parent is a bad person, but rather that the arrangement proposed is not safe.

Abuse includes coercive control and financial control, not only violence, and a child does not have to have been hurt themselves to have been harmed by it.

Get specialist help before you file anything. The National Domestic Abuse Helpline is free, 24 hours, on 0808 2000 247 - they can help with the evidence letter and with what to tell the court. Our support page lists the others, including services for men and for LGBT+ people.

How to apply for a child arrangements order

Assuming none of the exemptions apply to you:

  1. Attend a MIAM. A mediator explains the options and assesses whether your case is suitable. There are mediation vouchers of up to £500 available, whatever you earn.

  2. Try mediation properly if it's suitable. It's faster, very much cheaper, and produces arrangements people actually stick to, because they wrote them.

  3. If it fails, apply on form C100. The court fee is £270. Help with fees is available on a low income or on benefits.

  4. Cafcass runs safeguarding checks - police and local authority - and speaks to both parents before the first hearing.

  5. The first hearing is about narrowing the dispute rather than deciding it. Many cases settle here or shortly after.

Timescales vary enormously by court and by case. Months rather than weeks is the usual timeframe, and contested cases with fact-finding hearings run considerably longer.

Scotland and Northern Ireland

Scotland has its own system - parental responsibilities and rights under the Children (Scotland) Act 1995, with residence and contact orders rather than child arrangements orders. Northern Ireland has the Children (Northern Ireland) Order 1995. The principles are similar; the terminology, forms and procedure are not.

If you're in either, take local advice. This page is focused on England and Wales.

Where to go next

  • Money for the children is a separate system entirely, run by the Child Maintenance Service, and it is not connected to how much time anyone spends with them. Child maintenance

  • Making it work day to day — co-parenting

  • The divorce itself — how divorce works

Last reviewed: September 2026. This page covers child arrangements in England and Wales. It isn't legal advice about your situation, and children cases turn almost entirely on individual facts - take advice from a family solicitor who knows yours.

Sources for the fact-check