One of the most persistent myths in family law is that “the mother always gets custody.” It’s a belief that continues to circulate in conversations, court corridors, and even among clients – but this phrase is extremely unhelpful.

It’s time to retire the phrase “custody.”

In England and Wales, we don’t talk about custody any more – and haven’t for years. Instead, we talk about where children live and how they spend time with each parent or carer. This shift in language reflects a deeper change in how family courts approach child arrangements: it’s not about winning or losing, it’s about what’s best for the child.

Yet one myth persists:
“The mother always gets custody.”

Let’s break that down.

❌ Myth: Mothers always get the children.

✅ Reality: The court’s focus is the child’s welfare – not the parents’ gender.

Historically, mothers were more likely to be the parent with whom the child(ren) would live post-divorce as they were often the primary caregivers. But times have changed and in 1989, on the advent of the Children Act, the focus shifted from rights to responsibilities and from custody and access to joint parenting. Today, courts recognise that both parents often work, and neither is the main carer or a full-time, stay-at-home parent.  Both parents can and should play an equally important role in a child’s life, regardless of gender.

What does the Children Act 1989 actually say?

The court’s paramount consideration is the welfare of the child.

The court looks at what is called the ‘welfare checklist’:

• The child’s wishes and feelings (depending on age and understanding)
• Their physical, emotional, and educational needs
• The likely effect of any change in circumstances
• The capability of each parent to meet those needs
• Any risk of harm

What does this look like in practice?

In many cases, children live with one parent and spend time with the other. In others, they share their time more equally. Increasingly, courts are supporting shared care arrangements where appropriate.

Fathers are increasingly taking on equal or primary caregiving roles, and courts are recognising that. There’s no default setting.

Family courts start from the position that children benefit from having a relationship with both parents, unless there’s a good reason not to. The court doesn’t assume that mothers are better carers, nor does it favour one parent over the other.

Let’s change the conversation

Dispelling this myth helps parents focus on what really matters: creating a stable, loving environment for their children.

Using terms like custody and access can reinforce outdated, adversarial thinking. Instead, we should be talking about:

• Child arrangements
• Shared care
• Time spent with each parent
• Parental responsibility

These terms reflect a more child-focused, cooperative approach – one that puts the child’s wellbeing at the centre, and involves both parents and the wider family if appropriate and possible.

If you’re navigating separation or supporting someone who is, remember:
It’s not about who “gets” the child. It’s about what works best for them.

Next steps

If you’re going through a separation and worried about child arrangements, don’t let outdated assumptions guide your decisions. Contact us to speak to a family law expert at Herrington Carmichael. And remember – the law is on the side of your child’s wellbeing, not one parent over the other