When parents separate, deciding where a child will live and how they’ll be cared for can be one of the most difficult and emotional parts of the process. Disagreements over living arrangements often lead families to seek clear guidance on what the law allows and how a court may decide if the couple is unable to agree.

Although the term custody has fallen out of use when it comes to talking about children and family law in England and Wales, parents can still ask the court to make formal decisions about where a child lives and what time they spend with each parent. Knowing how the court approaches these applications and the factors it considers when a child’s welfare is at stake can help you understand your position and plan your next steps.

In this blog, the family law experts at Switalskis explain what full custody really means under the law, the circumstances where the court may consider it, and the process for seeking a child arrangements order.

Understanding Children Act orders in the UK

Instead of seeking full custody, parents can apply for a child arrangements order under the Children Act 1989. This order can determine:

• Where a child lives.
• Who the child spends time with or has contact with.

When people talk about full custody or sole custody, they mean a child arrangements order stating that the child will live with one parent and that parent will make most day-to-day decisions about the child’s upbringing.

However, this does not exclude the other parent from the child’s life. In many cases, the court will include arrangements for contact - such as regular visits, phone or video calls, or overnight stays - so the child can maintain a relationship with both parents where it is safe and in their best interests.

It’s also important to understand that parental responsibility usually remains shared. Even if the child lives with one parent full-time, both parents normally keep legal responsibility for major decisions about the child’s welfare, such as education, medical care and religious upbringing. The court will only remove parental responsibility in exceptional circumstances, for example, if it’s clearly unsafe for one parent to continue having that role.

Ultimately, the court’s focus is not on the label of “custody” but on ensuring that the child’s welfare, safety and stability are properly protected in whichever arrangements it approves.

Grounds for orders relating to a child in the UK

The court’s overriding concern is always the child’s welfare. It will only make orders where the evidence shows this arrangement is in the child’s best interests. Some of the main reasons the family court might decide a child should live with one parent include:

• Domestic violence or domestic abuse: where there is a risk of harm from an ex-partner, the court prioritises the child’s safety and emotional wellbeing.
• Substance abuse: drug or alcohol misuse can affect a parent’s ability to provide a safe, stable home.
• Severe mental health issues: if untreated or unmanaged mental illness creates risk to the child’s welfare, the court may decide it’s safer for them to live with the other parent.
• Neglect or welfare concerns: failing to meet a child’s physical needs (food, shelter, healthcare) or ensure they attend school can lead the court to restrict one parent’s care.
• Parental alienation: where one parent deliberately damages the child’s relationship with the other, this can affect child arrangements.
• Criminal record or violent crimes: a history of violence, sexual offences or other serious criminal behaviour weighs heavily on the court’s decision.
• Other serious concerns: unstable housing, unsafe associates or behaviour that prevents the child from having a secure and predictable routine.

Each case turns on its facts. The court looks for clear evidence that the child would not be safe or thrive without living primarily with one parent.

How the family court decides

The family court applies the welfare checklist from the Children Act when deciding custody disputes. This involves weighing:

• The child’s wishes and feelings, taking account of their age and understanding.
• The child’s physical, emotional and educational needs.
• The likely effect on the child of any change in living arrangements.
• Each parent’s ability to meet the child’s needs and provide a stable environment.
• Any history of harm or risk of harm.

The court may ask CAFCASS (the Children and Family Court Advisory and Support Service) to prepare a report after meeting the parents and child. Social workers may also contribute assessments. The court reviews witness statements, medical records, police reports and other evidence to understand what the child has experienced and what support is needed. The guiding principle is always the child’s best interests, not the wishes of either parent alone.

Preparing your case and protecting your child’s welfare

If you are seeking a lives with order, preparation is important. The court needs clear evidence that the child will be safer and better cared for if they live with you. Steps that can help your solicitor build a strong case include:

• Collecting witness statements or records from professionals such as schools, GPs, police and support services.
• Showing your ability to provide a stable environment with reliable housing, schooling, routines and support from family members.
• Demonstrating you can support the child’s emotional wellbeing, not just meet their practical needs.
• Being measured when discussing the other parent. Focus on risk and the child’s best interests, not personal conflict, when making your case to the court.

Seek independent legal advice early to understand the legal grounds and how to present your case. A family law solicitor can guide you through gathering the right evidence, presenting it clearly and preparing for court hearings.

The legal process for seeking a child arrangements order

If you’re considering applying for a child arrangements order stating that the child will live with you and placing limitations on their contact with the other parent, the process generally involves :

• Exploring alternative dispute resolution: the court expects parents to try mediation or another form of agreement first, unless there are safety concerns such as domestic abuse.
• Mediation Information and Assessment Meeting (MIAM): you’ll usually attend a MIAM unless exempt because of risk or urgency.
• Making an application: if mediation isn’t successful you apply on a C100 form, asking the family court for a child arrangements order.
• First hearing: the court considers safeguarding checks from CAFCASS and decides whether interim arrangements are needed.
• Further hearings and evidence: reports from CAFCASS or the local authority, witness statements and other evidence may be ordered.
• Final hearing and decision: a judge makes a decision on where the child lives and their contact with the other parent, and issues a binding child arrangements order.

Although parents can make applications themselves, the process is complex and the outcome shapes every part of a child’s life. A family law solicitor can prepare evidence, respond to reports from CAFCASS and social services, and present your case effectively in court. Switalskis can also advise on legal aid, which may be available if there’s evidence of domestic abuse or welfare concerns.

If you’re involved in a dispute about your child’s living arrangements, or you’re considering applying for a child arrangements order, it’s vital to understand your legal position. At Switalskis, our experienced family law solicitors can offer guidance on your rights, help you prepare your case and represent you in court proceedings. Call Switalskis on 0800 138 0458 or send us a message and we’ll contact you at a time that works for you.