Applying for Custody: Court Procedure

If you are seeking custody of your children, you will need to use Children Act form C1 which is readily available from the HM Courts and Tribunal Service website. The order that you will be seeking from the court is a ‘residence order’. It is possible to share custody with your ex-partner, although the courts are sometimes unwilling to grant these types of orders on the basis that they generally mean upheaval for the child – in that the child has to live in two homes.

A residence order also gives the person with the order ‘parental responsibility’ for the lifetime of the order, which usually lasts until the child turns 16. If you are in any doubt as to the type of order you should be applying for, seek the advice of a solicitor.

What a Residence Order Means

A residence order enables a parent to take their child out of the country for a maximum period of one month without having to seek the other parent’s consent. If you are seeking to emigrate on a permanent basis with your child, you can only do this with your ex-partner’s consent, or by order of the court. Similarly, a residence order does not allow you to change the child’s surname without the written consent of your ex-partner. For more details on this, see Specific Issue Orders on this website.

It is worth noting that, if you get a residence order, this does not give you carte blanche to make unilateral decisions in respect of your child’s upbringing. Both parents still have Joint Responsibility in determining how your child should be brought up.

Who Can Apply For a Residence Order?

The parent or guardian of a child can apply for a residence order, as can the married step-parent of a child, as long as that child lived with the step-parent as ‘a child of the family’. It is also possible for someone who has lived with the child for at least three years to apply.

In making a residence order, the court will consider a number of issues:

• What the child wants – although the court does not have to act on the child’s wishes, they must take it into account
• The child’s emotional, educational and physical needs
• The likely effect on any change in the child’s life
• The child’s sex, age and background, as well as anything else that the court deems relevant in respect of the child
• Any harm that the child has suffered or any risk of harm
• The capability of each parent or other person of meeting the child’s needs. This includes work commitments of the person applying for the residence order, and whether their routine is conductive to caring for the child.
• The domestic routine of the child up until the present time

Other Considerations

If the child’s parents are unmarried, the mother has sole parental responsibility until the father gains parental responsibility. This can be done either by agreement or through a court order. If a child is very young, the court generally assumes that the child will be better off with his or her mother unless the contrary can be proven. You should not let this dissuade you, however – all cases in the family court are decided on their own merits and just because you are the father does not mean that you won’t get a residence order.

Help Filling Out the Forms

There are numerous resources online that can assist you with filling out the forms to apply for residence orders. The HM Courts and Tribunal Service website publishes guides to assist with The Family Rights Group, which has a step-by-step procedure to help you through the application. There is a lot more information on the Cafcass website and Dad Info, among others.