Family Law – Custody

Custody is the right of a parent to exercise physical care and control in respect of the upbringing of his or her child on a day-to-day basis. The married parents of a child are automatically joint guardians and joint custodians of their child.

Where married parents have separated or divorced, they can decide between themselves on custody arrangements for their children. If they cannot agree, they may try to work out an arrangement through mediation but if that fails they must apply to the court for a final decision.

Where children are born outside of marriage the mother has an automatic right to custody. A father who is not married to the mother of his child can apply to the court for custody in the absence of agreement. It is not necessary for a father to have guardianship rights before he applies for custody.


The following may apply for custody:

  • a person who is a relative of a child or
  • a person with whom the child resides if that person is or was married to, or in a civil partnership with, or has cohabited with the parent of the child for a period of at least three years and has shared the day-to-day care of the child for at least two years or
  • a person with whom the child resides and who has had the day-to-day care of the child for a continuous period of not less than 12 months and the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of guardianship in respect of the child.


A person who is a guardian and who does not have custody (jointly or otherwise) or from whom custody of the child has been taken can apply for custody order under section 11 of the Guardianship of Infants Act 1964 (as amended).

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