What do judges see as “custody/arrangements mistakes”?
Misguided or poorly thought-through actions which suggest a parent cannot prioritise a child’s welfare: ignoring court orders, serving poor or late evidence, hostile communication, showing anger in court, or failing to cooperate with CAFCASS.
These errors have the potential to undermine credibility and can change where a child lives or how much time they spend with each parent.
Parents often underestimate how errors or poor judgment, either on paper, in court or otherwise, can influence the judge’s decision.
1. Disobeying court orders in respect of child arrangements
2. Failing to promote contact despite there being no safeguarding concerns
3. Missing deadlines to file evidence
4. Lying to the court or professionals about alcohol or substance misuse
5. Bad-mouthing the other parent (including on social media)
6. Involving the child in the dispute
7. Failing to cooperate with CAFCASS, the social services, or other professionals
8. Entering court with unrealistic expectations of sole custody
9. Taking a “tit for tat” approach to proceedings.
10. Failing to understand the impact of past harmful behaviours.
11. Being angry or aggressive in court
12. Being evasive in answering questions in court.
How Judges Decide Custody in England & Wales
Family judges apply the welfare checklist under s.1 of the Children Act 1989. This means every decision must prioritise the child’s best interests: their physical, emotional, and educational needs, the effect of any changes, and the capability of each parent. The child’s wishes matter, but age and maturity affect the weight these factors are given, and wishes are always secondary to overall welfare. (Re S (Children) [2010] EWCA 447)
In cases where serious harm or risk of harm is alleged, this is also assessed. This is usually done at a fact-finding hearing.
The court generally relies on professionals to prepare welfare reports to address factors under the welfare checklist. This may be done by a CAFCASS officer, a social worker, or a NYAS caseworker. In more complex cases, the court may decide that it is necessary for an expert to prepare a report i.e. a child and adolescent psychiatrist.
In practice, reports from these professionals carry significant weight. The recommendations of professionals are not, however, binding on the court, and a judge may choose to depart from the recommendations. It is important to remember that CAFCASS officers and authors of welfare reports decide nothing; they make recommendations to the judge, and the judge then decides whether or not an order should be made (P (A Child) [2009] EWCA Civ 1457).
However, judges generally expect convincing reasons to depart from recommendations made in a welfare report
Top 10 Child Custody Mistakes
1. Disobeying court orders in respect of child arrangements
- Why it damages your case: Non-compliance signals disrespect for authority, weakens your credibility, and makes you vulnerable to applications for enforcement.
- Example: A mother ignores interim contact orders as they did not accord with her position at court; when the matter returned to court, the judge attached a penal notice to the order for interim contact, and ordered that the matter return before her in a week if the mother continued to fail to comply. This gave the father grounds for an application for a change of residence for the child to live with him.
- Solution: Always follow orders to the letter, even if you plan to appeal. Even if an appeal is lodged, it does not operate as a “stay” of proceedings (unless ordered). – See Family Procedure Rules 2010, Rule 30.8.
2. Failing to promote contact despite there being no safeguarding concerns
- Why it damages your case: The capacity of the parents to meet a child’s needs includes their capacity to ensure that a child can maintain meaningful contact with the other parent. A failure to promote contact in circumstances where there are no safeguarding concerns indicates that the primary carer is incapable of meeting this need. See W (Children) [2012] EWCA Civ 999, paragraphs 75-78.
- Example: No safeguarding concerns in respect of Parent B. Yet Parent A (the primary carer) failed to promote contact between the child and Parent B. As a result of this, professionals may recommended a change of residence.
- Solution: If you find yourself in the position of Parent B, analyse the behaviours of Parent A and consider whether it is necessary to raise the allegation of alienating behaviours. If you find yourself in the position of Parent A, you will need to consider changing your approach towards contact between the child and the non-resident parent. If the court determines that Parent A is engaging in alienating behaviours, or is incapable of promoting contact with the non-resident parent, it has the power to order a change of residence.
3. Missing deadlines to file evidence; Deadlines & disclosure discipline
- Why does this damage your case: Late or missing material disrupts the court timetable and can be excluded.
- Example: Judge gives Parent A an opportunity to file a schedule of allegations. This was not done, so the judge did not give Parent A a further opportunity to do so.
- Solution: If you feel a deadline is too tight, inform the judge at the hearing when the deadline is set. If you anticipate a deadline being missed, make an application to the court seeking an extension of the deadline, explaining why an extension is sought. Keep a running list of every ordered task, with clear dates, who is responsible, and what evidence must be filed.
Tip for clients: diarise all court directions on the day they’re made. If anything will slip, email the other side and the court promptly proposing a revised date and attaching any documents you already have. Do not wait until the next hearing to seek an extension of a deadline.
4. Lying to the court or professionals about alcohol or substance misuse
- Why does this damage your case: There is little doubt that excessive alcohol or drug misuse by a parent is likely to cause harm to the child. If a parent lies about this and is found to be lying, this indicates, amongst other things, a lack of honesty and that they are unable to recognise the significance of their behaviour or the harm it will cause to the child.
- Example: Parent A informs the court that the only drug he took was cannabis. On forensic testing, the test result showed a range of alcohol and other drug misuse. Thereafter, the court could only place little weight on Parent A’s assertion that he had stopped misusing drugs or alcohol. It was eventually determined that contact between this parent and the child was not in the child’s interests.
- Solution: If you have misused drugs or alcohol, do not lie about it or try to conceal it. Inform the court and professionals prior to forensic testing. It is likely that support will be offered to you if you are honest.
5. Bad-Mouthing the Other Parent (including on social media)
- Why it damages your case: Judges see this as harmful to the child’s welfare. Screenshots often surface in court.
- Example: A mother’s Facebook post calling the father “unfit” was included in evidence, leading to a warning from the judge and a finding that she was, at times, unable to prioritise the needs of the child.
- Solution: Keep communication neutral and child-focused, online and offline.
- Expect that every word you type and send/publish will make its way to a judge making decisions in respect of your child.
Tip for clients: Assume every post becomes an exhibit. Never comment on the case publicly. Don’t vent in private groups or DMs; screenshots, timestamps and metadata travel. Keep all communication about the child neutral, brief, and child-focused.
6. Involving the Child in the Dispute
- Why it damages your case: Asking a child to “choose sides” subjects the child to emotional harm.
- Example: Parent A would directly and indirectly place pressure on the child to spend more time with them. This was established after the child was spoken to by professionals. The judge ordered a change of residence, with Parent B becoming the primary carer.
- Solution: Shield your child from adult conflicts at all times. It is highly likely they will be spoken to by professionals. If inappropriate conversations have been had with the child, it is likely this will come to the surface.
- Do not film the child to try and use in the proceedings.
7. Failing to cooperate with CAFCASS, the social services, or other professionals
- Why it damages your case: The court may form the view that you are being deliberately obstructive in an attempt to achieve your desired outcome.
- Example: A parent failed to engage with professionals and the court appointed a guardian for the child, who recommended a change of residence.
- Solution: Treat CAFCASS officers and professionals as neutral professionals, not opponents. Additionally, ensure you engage with professionals to avoid a suggestion that you are being obstructive.
8. Entering court with unrealistic expectations of sole custody
- Why it damages your case: There is a rebuttable presumption of involvement of both parents in the life of the child. Unless there is a very serious risk of harm, it is likely that a judge will keep both parents involved in the life of a child. In the absence of any risk of harm, asking the court for “sole custody” or no contact with the other parent may indicate that the primary carer is unable to meet all the needs of the child.
- Example: Parent A wished for Parent B to have no contact with the child, despite there being no safeguarding concerns. The judge formed a view that Parent A was unable to promote contact and gave them one final opportunity to show that they were able to do so.
- Solution: Frame your application around the child’s welfare, not parental victory.
9. Taking a “tit for tat” approach to proceedings
- Why it damages your case: If Parent A has behaved poorly, they can be criticised for their behaviour. This does not mean that Parent B should behave in the same way in an attempt to seek revenge. The judge may form the view that neither parent is able to meet the needs of the child, as they are focused on the other parent as opposed to the needs of the child.
- Example: The judge was of the view that neither parent was able to meet the needs of the child due to the implacable hostility between the parents. The judge ordered the local authority to consider whether care proceedings should be initiated.
- Solution: Once again, your focus has to be on the welfare of the child. If you feel the other parent has behaved poorly, raise this with the professionals and in court.
10. Failing to understand the impact of past harmful behaviours
- Why it damages your case: If you have made admissions or the court has made findings of past harmful behaviours, you will be expected to show an understanding of the impact of the impact of your behaviours on the child and the other parent. If you are unable to do so, the court may determine that a risk of harm still exists.
- Example: Parent A made admissions of past harmful behaviours, but was unable to understand the impact of their behaviours on Parent B and the children. The judge determined that there should be no direct contact until Parent A undertakes work with professionals to address his past behaviours, and until they demonstrate an understanding of their behaviours.
- Solution: Take some time to think about the findings made against you or the admissions you have made. Put yourself in the shoes of the child or the other parent, and think of how your behaviours may have impacted the other parent and the child.
Bonus: The DIY Representation Trap
Mistake 11 is assuming you can handle complex child disputes alone. While some parents succeed as litigants in person, many fall into child dispute mistakes such as poor evidence presentation, weak cross-examination, or receiving advice when it is far too late. Judges make decisions based on evidence. Poor presentation of evidence or missing evidence can significantly impact the outcome of the case. Proper representation at an early stage should mitigate against the risk of poorly presented evidence. I would NEVER advise someone to try and so a Fact Finding Hearing on there own.
Use this quick pre-hearing checklist to avoid last-minute gaps that undermine credibility.
Custody hearing prep checklist
- Position statement (1–2 pages: key issues, proposals, welfare points).
- Hearing bundle index; paginate, and ensure it is easy to navigate through the bundle.
- Communication logs, school and medical letters and other documents; Do not include evidence in the hearing bundle unless you have been given permission to have it admitted into the proceedings. If the other side is preparing the bundle, ensure the hearing bundle is agreed before it is lodged with the court. If you wish for a particular document to be included in the hearing bundle, ask the judge for permission at the hearing.
- Court attire and venue plan: arrive 1 hour before the hearing starts to allow time for pre-hearing discussions (unless ordered otherwise). Dress smart, even though there is no dress code for litigants in person. DO NOT WEAR SHORTS.
Tip for clients: bring one printed set of your position statement for yourself and have digital copies ready to share if the judge requests.
How a direct-access barrister could help you
- Early strategy: Identify risks before they escalate, and seek advice.
- Carefully crafted documents: Drafting and filing C100s, position statements, and evidence bundles after receiving advice.
- Persuasive advocacy: Presenting your case with authority in court.
- Fixed fees: No hidden surprises.
FAQs
How do I impress a family-court judge?
Show reliability, cooperation, and consistent focus on your child’s welfare.
What is the best evidence to submit?
Neutral evidence such as school records, medical notes, and communication logs. Contemporaneous evidence is also helpful i.e. screenshots of messages exchanged.
How do I prepare for a contentious custody hearing?
Have a clear and well thought through position statement and organised evidence.
Who pays CAFCASS and court fees?
CAFCASS is publicly funded; court fees are usually paid by the applicant.
I am a direct access barrister specialising in family law, including applications for child arrangement orders.
We are based in the North East but can help clients in all parts of England and Wales.
