'The Mother Always Gets Custody of the Children' - The Myth

The statement that mothers always get custody of the children is now much of a myth. This belief comes from outdated social norms and archaic legal practices, but today, custody decisions, what we call residence decisions here in England and Wales, are made based on the best interests of the child.

Here’s the reality...

1. Best Interests of the Child:

Decisions are based on a number of factors that prioritise the child's well-being, such as emotional bonds with each parent, the ability of each parent to provide a stable environment, and the child's needs.

The law does not automatically favour mothers anymore. Courts assess each case individually on the facts presented.

2. Gender-Neutral Standards:

Courts have moved away from gender biases in favour of mothers, there is no one fits all approach. We live in a modern society where there are same-sex parents and blended families. The courts must move with the times even if the laws surrounding these decisions are old.

The courts consider factors such as the role each parent had in the child's life before separation and following separation, the ability of each parent to meet the child's emotional and physical needs and their overall wellbeing. We are seeing children expressing their wishes and feelings earlier now such as at 8-9 years old but consideration always has to be given as to their understanding of the impact of their decision at young ages. By way of example, if you gave your 8 year old the decision to brush their teeth or not, they would probably opt for not without realising the long term consequences of teeth decay. The Courts expect parents to step back and think about the long term consequences of a child not having both of their parents present in their lives because a child would not know for themselves what impact that could have on their own mental health and ability to create and maintain relationships. Hence, the courts expect both parents to actively encourage positive contact with the other, unless of course there are serious safeguarding concerns with one of the parents.

3. Equal Parental responsibility:

Both parents have equal rights when it comes to their children which is why parents have parental responsibility. Many courts today emphasise shared residence and joint parenting arrangements, where both parents are actively involved in decision-making and care.

4. Modern Life:

Work places are becoming more flexible meaning that both parents are able to commit to school runs, attend school performances, matches, and extra curricular activities. Every parent has the ability to decide how they want to balance their life with work and other responsibilities and will make decisions based on their own long term goals and how they want to shape their children's lives for the future, it is entirely case specific.

5. Shared Residence:

What does the law say?

Section 8 of the Children Act 1989 distinguishes the orders that can be made with respect to residence of children, it states:

Section 8.1 of the Children Act 1989 explains that a 'child arrangements order' means an order regulating arrangements relating to any of the following –

1. With whom a child is to live, spend time or otherwise have contact, and
2. When a child is to live, spend time or otherwise have contact with any person.

Under section 1 of the Children Act 1989 the welfare of the child shall be the courts paramount consideration and subsection 3 lists key considerations that the court shall have regard to which is often set out to CAFCASS or the local authority when they prepare a section 7 report in the case.

These key considerations are at section 1(3) of the Children Act 1989:

(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)his physical, emotional and educational needs;

(c)the likely effect on him of any change in his circumstances;

(d)his age, sex, background and any characteristics of his which the court considers relevant;

(e)any harm which he has suffered or is at risk of suffering;

(f)how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g)the range of powers available to the court under this Act in the proceedings in question, which effectively means that the Court can use their discretion to consider any other issues in the case that may arise.

See https://www.legislation.gov.uk/ukpga/1989/41/contents as referenced above.

A solicitor will provide you with specific advice on your case details utilising the above statute, along with case law and advise you on how to achieve the contact and residence you desire with your child(ren) following separation if disputes arise. 

Conclusion:

While it used to be more common for mothers to have the children in their care for the majority of time, the legal system has shifted. Today, residence is about what’s best for the child, not about automatically favouring one parent over the other. Parents have an equal opportunity to gain residence based on their involvement and ability to provide for the child’s needs.

The ODT Family Law team will work with you prior to and during any application in order to advise you on the best way to obtain residence that is in the best interests of your child and you as their parent.

If you have a residence dispute that you would like to receive advice or representation for, please do contact us today at chireception@odt.co.uk or on 01243 973650