Will my partner get custody?

Probably not in the way you are picturing, because "custody" has not existed in the law of England and Wales since 1989, and Scotland dropped it in 1995. Courts do not award children to a winner. They decide, if parents cannot agree, where children live and how much time they spend with each parent, and they decide it on one principle: the welfare of the child. How your partner has behaved towards you is part of that.

How it actually works in England and Wales

Most separated parents never go to court. They agree arrangements between themselves, sometimes with mediation. When they cannot agree, either parent can apply for a child arrangements order under the Children Act 1989. The court then decides who the child lives with, who they spend time with and how.

The court's only question is what is best for the child. The Act sets out a welfare checklist: the child's wishes and feelings in light of their age, their needs, the likely effect of any change, any harm they have suffered or are at risk of, and how capable each parent is of meeting their needs. There is a presumption that involvement of both parents benefits the child, but it is explicitly set aside where involvement would put the child at risk of harm.

Cafcass (Cafcass Cymru in Wales) is the independent body that advises the court. Before the first hearing, a Cafcass officer carries out safeguarding checks with police and social services and speaks to both parents. They may later write a fuller report, including speaking to the children.

How abuse is treated

Practice Direction 12J requires every family court in England and Wales to consider whether domestic abuse has occurred and, if so, what it means for the child. Abuse of a parent is recognised as harm to the child, including where the child did not see it. Where abuse is disputed and would make a difference, the court can hold a fact-finding hearing to decide what happened.

Where abuse is found, the court must consider whether contact is safe, and if so, how: supervised contact, handovers through a contact centre or a third party, indirect contact only, or in some cases none. Controlling behaviour that continues through the children, through endless applications, through handovers, through messages about "the children" that are really about you, is something courts have become more alert to, though unevenly.

It is still difficult. The people who do this work will tell you the system does not always get it right, that proceedings can be used by a controlling ex-partner to stay in your life, and that preparation and good advice matter.

Scotland and Northern Ireland

Scotland uses residence and contact orders under the Children (Scotland) Act 1995, with the same welfare principle. Since 2020 Scottish courts have been required to consider the effect of abuse on the child and on the parent caring for them. Northern Ireland's Children (NI) Order 1995 mirrors the English approach, with residence and contact orders.

What this might mean for you

If fear of losing the children is keeping you where you are, it is worth knowing that leaving with your children because you are unsafe is understood by the courts as protective, not as abduction. Keep a record of why you went and what you did to get help. The free module Children: what they see looks at what children take in from a home where one parent controls the other. After separation, the member module Co-parenting when control was the problem covers contact, handovers and the court process in detail. If you are planning to leave, Leaving safely has a section on children.

This is general information, not legal advice. Rights of Women (020 7251 6577) gives free family law advice to women in England and Wales. Scottish Women's Rights Centre does the same in Scotland. A family solicitor can advise anyone, and legal aid is available where there is evidence of abuse. If you are not safe now: National Domestic Abuse Helpline 0808 2000 247, Men's Advice Line 0808 801 0327, Galop 0800 999 5428.