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What is custody?
Custody means having responsibility for the day-to-day care of a child under the age of 18.
Custody can become an issue where a child’s welfare needs to be legally decided. This often follows the judicial separation, divorce, dissolution of a civil partnership, or the end of cohabiting arrangements.
Custody should not be confused with guardianship (the legal responsibility to make major decisions about a child’s upbringing) or with access (contact) (the right of a child and an adult to have contact when they do not live together).
Types of custody
- Sole custody is where one parent (or another person appointed by the court) is responsible for the child’s day-to-day care.
- Joint custody is where both parents (or two people appointed by the court) share responsibility for day-to-day care. If time is not shared equally, the court or an agreement can identify a primary carer (the person who has most parenting time).
Automatic custody
You may already have automatic custody rights. This means you do not have to apply to court for custody of your child. The following people have automatic rights:
- A mother who is not married to the father has automatic sole custody of the child.
- Married spouses living together have joint custody.
Custody by agreement
Both parents agree on joint custody. You can reach agreement about custody arrangements together, or with help from a mediator or solicitor. You may ask a judge to make your agreement a rule of court so it has the same effect as a court order and can be enforced.
More information on mediation and legal help >
Custody decided by the court
If you do not have automatic rights or cannot reach agreement, you can apply to the court for custody. The examples below show who may need to apply. This is not an exhaustive list.
Most applications are made to the District Court. Applications can also be made to the Circuit Court, often as part of a judicial separation or divorce case. You might want to get legal advice for your situation.
Parents disagree about custody
Where the parents cannot agree, either parent can apply to the court for joint or sole custody. The judge may consider the child’s views where their age and level of understanding make this appropriate.
Relatives of the child
Brothers, sisters, aunts, uncles, and grandparents can apply to the court for custody of a child.
Guardians of the child
Any person who is currently a guardian (including a temporary guardian) who does not have custody may apply to the court for sole or joint custody.
Step-parent, civil partner or cohabitant
A person who lives with the child and is or was married to a parent, or in a civil partnership with a parent, or has been a cohabitant of the parent for a minimum of three years, may apply to the court for custody. They must also have co-parented the child for at least two years.
Other adults
A person who has provided for the child’s day-to-day care for a continuous period of more than one year may also apply to the court for custody. This applies where the child has no parent or guardian who is willing or able to exercise guardianship responsibilities.
