Who Has ‘Custody’ of a Child When the Parents Are Not Married UK
April 2025
When unmarried parents separate, questions often arise around who has custody of the child, and each parent’s legal standing. In England and Wales, the term “custody” is no longer used; instead, the courts talk about “child arrangements”. These determine where the child lives and who they spend time with.
This summary provides general information and does not constitute legal advice on any individual circumstances.
Parental responsibility refers to the legal duties, powers, and responsibilities a parent has in relation to their child and the child's property. This includes decisions about the child's education, medical treatment, religion, and general welfare. In England and Wales, a mother automatically has parental responsibility from the moment the child is born, regardless of whether she is married or not.
For fathers, the situation can depend on various factors. An unmarried father will only have parental responsibility if he is named on the child’s birth certificate (for children born after 1 December 2003 in England and Wales), or if he obtains it through a court order or by entering into a parental responsibility agreement with the child’s mother.
Without parental responsibility, a father does not have an automatic right to make important decisions about the child’s life, such as which school they attend or what medical treatment they receive. However, even in the absence of parental responsibility, he can still apply to the court for contact or involvement in the child’s life. The law recognises the importance of both parents having a role in their child's upbringing, and the court’s primary focus will always be the best interests of the child.
Who Decides Where the Child Lives?
When unmarried parents separate, the child may live with either parent, depending on what is agreed between them. If parents are able to agree on arrangements informally, there is no need to go to court. The child can live with one parent and have regular contact with the other, or live with both parents in a shared care arrangement.
If an agreement cannot be reached, either parent can apply to the Family Court for a Child Arrangements Order. The court’s primary concern will be the welfare of the child. It does not automatically favour the mother or the father, but will instead look at a range of factors to determine what arrangement is in the child’s best interests.
These include the child’s emotional needs, their relationship with both parents, and the ability of each parent to meet the child’s day-to-day needs. The court may decide that the child should live with one parent and have contact with the other, or that a shared care arrangement is most appropriate.
Do Fathers Have Equal Rights if Unmarried?
Unmarried fathers who have parental responsibility are entitled to the same legal status as mothers when it comes to decisions about the child’s welfare. If they do not have parental responsibility, they may still apply to the court to obtain it.
Having parental responsibility does not guarantee a specific living arrangement, but it ensures the father has a say in important decisions affecting the child.
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