Custody of children

Custody is the right to the physical care and control of a child. When unmarried parents separate and they cannot agree on who should have custody of the child, the court may have to decide who should have custody of any children.

An unmarried mother is automatically considered the sole guardian of a child born outside of marriage and has sole custody. However, a father can apply for joint or sole custody.

Under the Children and Family Relationships Act 2015, certain other people have to apply for custody, including:

• a relative of the child
• a parent's spouse, civil partner or cohabitant (for at least 3 years) with whom the child resides and where they shared parenting of the child for at least 2 years
• a person the child lives with, if they have provided care to the child for at least a year and no parent or guardian are willing or able to exercise the powers and responsibilities of guardianship

Court decision

In general, the courts tend to consider it is in the child's best interests to live with its mother. The courts will usually allow regular access to the child for an unmarried father. The court will consider the parent's behaviour and conduct.

A judge may place restrictions on access if or when one parent enters a new relationship. The court may request a psychological assessment of the child. When professional opinions are sought by the court, those conclusions may be an influence in the court's final decision.

Children placed for adoption

If the unmarried mother intends placing or has already placed the child for adoption, the father may apply for custody of the child. The essential issue for the court in deciding who should have custody will be the welfare of the child. If the child has already been adopted, the length of time they have spent with their adoptive parents will be taken into account.

Appealing a decision

Decisions regarding custody, access and maintenance of children will be open to review if circumstances change. You can also appeal if you are unhappy with the result.

Enforcement order

The court can impose an enforcement order if you have been unreasonably denied the custody the court granted you. This may include:

• compensatory time with the child
• reimbursing expenses
• one or both parents attending parenting programmes, counselling or getting help with mediation

The Courts Service has information on applying for custody on its website. Contact your local District Court for further information on how to apply for custody.

There is guidance for surrogacy in the document below.

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