Custody Myths: Why “Custody” No Longer Exists in Family Law

When people talk about divorce or separation, they often mention “custody” — a word that instantly evokes strong emotions. However, in England, the legal system has moved away from this outdated term. Despite its continued use in everyday conversations, “custody” is no longer part of the legal vocabulary.

Today’s family law is designed to focus less on “winning” or “losing” custody and more on what child arrangements after divorce serve the best interests of the child. In this post, we’ll first explain what has replaced “custody” in English family law and then debunk some common myths surrounding it.

What Has Replaced ‘Custody’ in English Family Law?

The term “custody” has been replaced by Child Arrangements Orders under the Children and Families Act 2014. These orders determine:

• Where the child lives
• How much time the child spends with each parent
• When and how the child communicates with each parent

In many cases, the courts encourage shared care arrangements, where children live part of their time with each parent. While time does not have to be split exactly 50/50, the emphasis is on children feeling they have two homes and a secure relationship with both parents, provided it is safe for them to do so.

Key phrases you’ll hear today include child arrangements, shared care child arrangements, and modern family law terminology that centres the child’s needs over parental competition.

Myth #1 – ‘Custody’ Means One Parent Has Full Control Over the Child

A widespread misconception is that “custody” grants one parent total control over the child’s life. In reality, English law centres on the concept of Parental Responsibility — the rights, duties, powers, and authority a parent has for a child.  It’s about the legal obligations and the ability to make big decisions regarding a child’s upbringing, including education, healthcare, religion and welfare.

Parental Responsibility continues for both parents after separation or divorce, unless legally removed (which is very rare and extremely difficult). Parental Responsibility is shared equally between parents, regardless of what living arrangements are agreed between the parents or ordered by the court in a child arrangements order.

Instead of awarding “custody,” the courts may issue a Child Arrangements Order, which sets out:

• Where the child lives (historically known as ‘residence’), which can be with both parents in two homes and not necessarily on a 50/50 basis; and
• When and how the child spends time with a parent they do not live with (historically known as ‘contact’)

This approach ensures both parents, where appropriate, play an active role in their child’s upbringing.  Even in cases where the outcome is that a child lives with one parent and spends time with the other, the parent with whom the child lives does not have ‘custody’ or more control over a child’s life.  This is because sharing Parental Responsibility means an equal say in the important decisions in a child’s life – such as what school they should attend or serious medical treatment.

Myth #2 – Family Courts in England Always Favour Mothers

There’s a persistent belief that mothers automatically receive more favourable treatment in family courts. However, under English family law, the child’s best interests are paramount, not the parents’ gender.

Courts actively encourage co-parenting after divorce or separation and prefer shared care arrangements where possible. Shared care does not necessarily mean a 50/50 split of time — but it does mean children have meaningful relationships with both parents and two homes where they feel secure and supported.

Modern family law in England promotes arrangements that reflect the child’s need for stability, love, and continuity with both parents, rather than presuming one parent should be the primary carer.

Myth #3 – You Must Go to Court to Settle “Custody” Issues

Many people assume that court battles are inevitable when sorting out parenting arrangements. However, going to family court is usually not necessary — and is often discouraged unless absolutely unavoidable because two parents are in dispute or unable to reach an agreement.

Family mediation offers a non-confrontational way to resolve issues, allowing parents to reach agreements amicably without litigation. Mediation and collaborative law processes are encouraged to save emotional and financial costs, and they typically result in solutions that are more tailored to the family’s unique situation.  Our experts can guide you through the various ways in which family disputes can be resolved outside of court.

Parents are strongly encouraged to work together to make arrangements themselves because, ultimately, they know their children best. Parents understand their children’s personalities, routines, emotional needs, and relationships far better than a Judge, who will only have limited time and information about the family. Agreements made by parents tend to be more practical, flexible, and better tailored to the individual needs of the children, which helps to promote stability and emotional wellbeing after separation.  It can be helpful to have a Parenting Agreement drafted to set out in clear terms what has been agreed when two parents decide the arrangements for their children between themselves, but it is not strictly necessary.

By reaching agreements amicably, parents retain control over the arrangements, protect their children’s emotional health, and avoid the adversarial nature of court proceedings.

The benefits of avoiding court include faster resolutions, reduced stress, and better long-term co-parenting relationships. 

Myth #4 – “Custody” Gives You the Right to Relocate with the Child

Another misconception is that securing “custody” (or having a court order that says a child lives with you) means a parent can move away — even abroad — with the child without any restrictions. In fact, significant relocations are strictly regulated.

If a parent wishes to move abroad (or even far within the UK) with a child after separation, they must either:

• Obtain consent from the other parent, or
• Apply for a Specific Issue Order from the court.

Relocation disputes and moving abroad with a child after divorce involve careful legal scrutiny, and permission is only granted if it’s shown to be in the child’s best interests.  Our team have dealt with many court applications for Specific Issue Orders for relocation.

Let Go of the “Custody” Myth – Focus on What’s Best for the Child

Language matters. In English family law today, there is no such thing as “custody” anymore. The emphasis has shifted from ownership-style concepts toward shared parental responsibility and child-centred arrangements. Parents are encouraged to reach agreements themselves, using mediation and other cooperative processes wherever possible, without the need for court battles.

This is a positive development, reflecting a more modern, empathetic understanding of family dynamics after separation. If you’re going through this process, remember: it’s far better for your child if you — the people who know and love them best — decide what should happen, rather than leaving it to a stranger in a courtroom. After all, at the heart of it all, it’s the child’s happiness, stability, and security that matter most.

How can we help

The welfare of your child is the primary consideration, and our experienced family law team is here to help you move forward with confidence and clarity. We provide expert advice on disputes concerning children, always aiming to achieve the best outcome for them.

Contact us today to speak to a solicitor or book a call through our Divorce Clinic — a no-obligation service where we’ll listen to your situation, answer your questions, and help you feel confident about your next steps.

As a top-tier firm, we’re here to offer clear guidance and support from the very start.