by Akwal Ryatt, Head of Family Law, Tyler Hoffman Solicitors
Arrangements for the custody and care of children are among the key decisions that need to be made when parents separate or get divorced in the UK. In most cases, the court will try to get you to make decisions informally before applying to the court, although this is not always possible if you reach an impasse in a dispute.
Some childcare needs can be resolved with a custody agreement, while others will need the legal backing of a child arrangements order. Though both documents can be used to determine where a child will live, how much time they will spend with each parent, and other practical arrangements for their care after separation or divorce, only one gives parents legal rights that can be enforced in court if necessary.
Here, the experienced family law solicitors at Tyler Hoffman explain the difference between a custody agreement and a child arrangements order in assigning visitation, decision-making and other key responsibilities to parents for their children. We will also discuss the circumstances under which each document is a suitable option, the different structures that these arrangements can take, and the restrictions that can be applied in some cases.
What is the difference between a custody agreement and a child arrangements order?
A custody agreement is not a formal legal term in England and Wales, and the term “custody” is not part of current family law terminology, although it is more common in conversation. In this context, a custody agreement is usually an informal, voluntary arrangement between parents setting out where the child will live and how they will spend time with each parent.
This can be a cost-effective way to approach childcare in the wake of a divorce, especially if both parties agree on the terms and are willing to follow them. Because it is informal, parents can change the terms of the agreement at any time without court involvement – but this does not only apply if the parties agree. In fact, unless this type of document is turned into a court order, it is not legally binding, which means that the court cannot enforce it if one parent stops following it.
As such, many parents start with a collaborative custody agreement during the divorce process, but then apply for a child arrangements order to make the arrangements enforceable, in case disputes should arise later. A child arrangements order is a specific type of court order that can be enforced by the court if breached without reasonable excuse.
What do child custody documents cover?
A child arrangements order sets out where a child will live, how much time they will spend with each parent, and other practical arrangements for their care after separation or divorce. These include specifying conditions for handover arrangements, holiday contact, or rules about introducing new partners. An informal custody agreement should include similar terms if it is to be used in the same context, as its purpose is to give a clear framework for a child’s living arrangements.
A child arrangements order can only be varied by agreement (with court approval) or through a further court application. As such, it is important to resolve any questions in these areas and make firm decisions about your child’s care before pursuing a legally enforceable child arrangements order. An experienced family law solicitor can support you in making the necessary arrangements and help you to apply to the court to have them enforced.
What is the court’s view on child custody arrangements?
When the court becomes involved in making a child arrangements order, it will seek to put the child or children in the best possible position in terms of their welfare. For older children, they may also take the child’s wishes into account when deciding which parents the child will live with, for example. Other factors that will be evaluated in determining whether child custody arrangements are fair and reasonable include:
- The child’s welfare, including their physical, emotional, and educational needs.
- The likely effect of any change in circumstances.
- Any harm the child has suffered or may be at risk of suffering.
- Each parent’s ability to meet the child’s needs.
The court’s primary concern is to make a decision that works best for the child. Reaching an informal agreement first means that these matters will already have been considered, and can make the court process a relatively simple formality.
While the court process is not always straightforward – especially when matters are contested – it is advisable to have any informal custody arrangements made into a specific child arrangements order. Even if you believe there is no risk of the other party changing their position or breaking the agreement, you may be left without any power to stop them otherwise.
Once granted, a child arrangements order is legally enforceable. This means that if a parent breaches it without reasonable excuse, the other parent can apply to the court for enforcement, which may lead to penalties. You can also specify in the arrangement that both parents must agree on matters such as taking the child abroad, which can give you peace of mind that you have legal protection even if you believe there is limited risk.
In most cases, the process to secure a child arrangements order begins with an informal agreement, which is then enshrined into law. If parents are unwilling to sit down for informal talks, the court may order them to attend a mediation information and assessment meeting where the matter can potentially be resolved without making a court application. If you believe an application to the court will be required, it can help to have an experienced family law solicitor represent your interests during this process, and help you to secure the best possible outcome.