child custody

In the continuation of our Private Family Law series, we break down the myths held by many of our clients. This article looks at child custody and access.

I felt it appropriate to do an article dedicated to these two particular concepts as I am regularly asked for advice in relation to “custody and access disputes”. These two words continue to be the most widely and commonly held misconceptions about the current law in regards to children matters and in effect have not existed since the introduction of the Children Act in 1989.

Prior to 1989 there were effectively three issues that had to be dealt with in regards to children and in effect had to be dealt with on each and every divorce. These were:

Child Custody

Custody in fact did not determine with whom the children lived. It was the term used to identify which parent had the primary authority to make decision in regards to the child. This has now been replaced with Parental Responsibility, which we’ll cover in a later article.

Live With Orders

These were orders which determined with which parent a child would live and consequently became bound up with the concept of custody.

This was because if a child was ordered to live with a particular parent they would usually be provided with the custody of that child simply because it was appropriate and practical, on the basis that the child formally lived with them. Consequently, however, custody did not actually determine with whom a child lived or indeed meant that that was the outcome.

Access

Access, of course, was provided to allow the non-lived with parent to have access to the child. This was subsequently replaced in the Children Act with the concept of Contact (which itself has subsequently been further changed).

Consequently, when I first meet with a new client, I frequently have to advise that firstly custody and access no longer exist. It does not mean what they thought it meant in the first place and there will be no reference going forwards within any proceedings or advice to the terminology of custody and access.

The next article in this series will address the Children Act 1989, which is the relevant law now. For more information on private family law proceedings, please read these articles: