Do Mothers Automatically Get Custody in Divorce?

The short answer is a resounding no.  There’s a common misconception that mothers automatically get custody of their children in divorce proceedings in England and Wales. This is simply not true.  The law has moved away from the concept of “custody” and now focuses on “residency” and “child arrangements orders” which prioritise the child’s welfare above all else.

What Changed?

Historically, the idea of “custody” was prevalent, often favoring mothers, particularly with younger children. However, the law has evolved significantly.  The Children Act 1989, and subsequent amendments, shifted the focus to the child’s needs and rights, not the parents’ entitlements.

Child Arrangements Orders: What are they?

Instead of “custody,” the courts now deal with Child Arrangements Orders. These orders set out the living arrangements for the child and who they spend time with.  They can cover various aspects, including:

 * Where the child lives: This doesn’t necessarily mean sole residence with one parent.  The child can live with both parents at different times.

 * Who the child spends time with: This includes contact arrangements with the parent the child doesn’t live with primarily.  It can involve visits, phone calls and video calls.

 * Specific issues:  Orders can also address specific issues like education, healthcare and religious upbringing.

The Welfare Principle: The Paramount Consideration

The court’s primary concern when making decisions about children is the child’s welfare.  This “welfare principle” is the paramount consideration.  The court will consider a range of factors, including:

 * The child’s wishes and feelings: Depending on their age and understanding.

 * The child’s needs: Physical, emotional and educational.

 * The child’s age, background and characteristics.

 * Any risk of harm to the child.

 * The parents’ capabilities.

Neither Parent Has Automatic Preference

Crucially, neither parent has an automatic right to live with the child. The court’s decision is based on what is in the child’s best interests, regardless of the parent’s gender.  Both parents have equal rights and responsibilities when it comes to their children.

What Does This Mean for Mothers?

While mothers often play a primary role in childcare, this doesn’t guarantee they will automatically be the parent the child lives with primarily.  Fathers are increasingly involved in their children’s lives, and the courts recognise this.  The focus is on creating arrangements that support the child’s relationship with both parents, where safe and appropriate.

Seeking Legal Advice is Essential

If you are going through a divorce or separation and have concerns about your children, it is crucial to seek legal advice. We specialise in family law and can explain your rights and responsibilities, help you negotiate arrangements with the other parent and represent you in court if necessary.  Don’t rely on outdated assumptions about custody; understand the current legal framework and how it applies to your specific situation.

This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on the 1st March  2025 and is correct at the time of publication. With decades of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. He is widely regarded as one of London’s leading divorce lawyers. His profile on the independent Review Solicitor website can be found Here