Should I apply for a child custody or contact order or delay?

Posted onDecember 17, 2025

Many separated parents face the dilemma of whether to apply to court for a child custody or contact order, or delay. Experienced Divorce and Family Law Solicitors in London can provide guidance to parents considering whether to attend family mediation or apply for a child arrangement order. Getting the timing of a court application correct can avoid delay and help you secure the child law orders you believe are in your child’s best interests.

Contact OTS Solicitors Today for Expert Family Law Advice.

Applying for child custody or contact orders before starting divorce proceedings

Many parents assume that they cannot apply for a child custody or contact order unless divorce proceedings have been started. Court rules allow you to apply for a child arrangement order (the new style custody, residence, contact and access order) before divorce proceedings are commenced.

This type of child arrangement order application is called a freestanding application. There are several reasons why you may need to apply quickly for a child law order:

You fear your spouse intends to return to their home country with your child without your agreement or a court order.
Your spouse has left the family home and is refusing any contact with your child.
The relationship involves domestic violence, and you need an injunction order and a child arrangement order to protect yourself and your child.

However, there may be other good reasons to delay your children's law application.

Do you need to attend family mediation before you can apply for custody or contact?

One of the biggest fears parents have about attending family mediation sessions is that it will delay resolution. That fear may be understandable if one parent is refusing all contact or if you need a holiday order urgently because you want to take your child abroad on holiday, and the other parent will not agree.

Concerns about mediation-related delays lead parents to ask whether they can skip mediation and proceed directly to court. The answer is that you may be able to do so in some circumstances, such as:

There are immediate child safety issues. For example, you are concerned about the welfare of your child whilst in the care of the other parent because the other parent has alcohol or addiction issues, or your child has unexplained injuries.
There was a history of domestic violence in the relationship, and the measures the family mediator has suggested to make mediation a safe space for you (such as shuttle mediation) don’t work for you.
The application is urgent. For example, your former partner intends to take your child overseas to live, without your consent, and has not applied for a relocation order or a specific issue order.

The family mediation process

The Family Procedure Rules require most parents to try family mediation before applying for a court order, including a child arrangement order, a prohibited steps order, and a specific issue order.

The first step in the mediation process is to attend a Mediation Information and Assessment Meeting (MIAM) before applying to court. There are limited circumstances in which a parent is exempt from the requirement to attend a MIAM. For example, there is a real risk of child abduction unless an urgent child arrangement order and a prohibited steps order are obtained.

What is the purpose of a MIAM?

The purpose of a MIAM is to help those involved in family law disputes to:

Learn about the mediation process and other methods of non-court dispute resolution.
Help understand how mediation could be made to work in your circumstances. For example, the use of shuttle mediation.
Provide a MIAM certificate to show that you or your ex-partner is exempt or that you attended the MIAM. The certificate allows you to start court proceedings.

If you do not go to an MIAM and you do not fall within one of the exemptions, the court could refuse to issue your court application or adjourn the application for family mediation to take place. This could add to the delay, as you may have waited for a court hearing date to be told that your application will not proceed until you attempt family mediation.

Exemptions from attending a MIAM

A family mediator will screen parents to determine whether an MIAM exemption applies. The rules say that you don’t have to attend a MIAM if you fall into one of these categories:

There was domestic violence in the relationship.
You need an urgent court order.
You need to enforce an existing court order.
You have been to mediation within the last 12 months.
One person cannot go to mediation because of distance, health or other acceptable reason.

Consequences of not attending an MIAM or going to family mediation

If you don't go to a MIAM and you do not have an exemption, or if the court thinks that neither of you gave family mediation a chance to work, the court can:

Refuse to issue your application, or
Adjourn the court application for mediation sessions to take place, or
Form a view on your application or your response to your ex-partner’s application if they think that mediation was not given the chance to work because you refused to cooperate.

Reasons for skipping mediation

There are many scenarios in which a parent may want to skip mediation and apply to court for a child law order. The most common scenarios are:

You have left the family home, and your ex won't let you see the children because they are upset about the reasons for the relationship breakdown and angry with you.
You have formed a new relationship, and your ex is upset about it and won't let you see the children.
Your ex has met someone new, and you think your ex wants to cut you out of the lives of the children, as they are now a ‘new family’.
You have separated and left the family home, and whilst you are seeing the children, your ex won't let you have overnight contact, as your ex says the children are too young or too distressed by the separation, and contact needs to be taken gradually.

In all the above scenarios, it is understandable that you want to arrange the best parenting arrangements for your children as quickly as possible. You may view the court application route as the faster route to a solution. A court application for a child arrangement order, prohibited steps order, or a specific issue order isn’t necessarily the best option.

The benefits of family mediation

Family mediation can be a better option than court because:

Family mediation can be quicker and cheaper than a court application.
In family mediation, the mediator helps you reach a compromise, ideally after you have both taken legal advice and mediation support from a Family Law Solicitor. Taking specialist legal advice helps you both understand your court options and the likely outcomes. Reaching a compromise agreement can be better than having a judge impose a decision on you.
If you attend family mediation and reach an agreement, you are more likely to be able to maintain a working parenting arrangement with your former spouse or partner. That’s because the court process can further inflame family tensions and animosity. Reaching an agreement through mediation may make it easier in the future to understand the other party's perspective and continue working together to resolve childcare arrangements.

Reasons why mediation may be a delaying tactic

A parent may be wary that a suggested referral to family mediation is a delaying tactic because:

There is a suspicion that the other parent is only suggesting going to mediation to delay contact resuming and that they will string the mediation along with cancelled appointments and excuses.
The other parent has said they will mediate, but has a very fixed position about what they think is in the children’s best interests and said they won't change their views.

Mediation may still be an option in either situation. However, it is best to ensure the mediation is time-limited and focused to avoid drift or delays, only to find that your ex-partner won't change their position, whilst you are prepared to make concessions to reach a compromise through mediation.

Why delay in starting court proceedings could harm your child law application

Whilst it is usually thought best to give the other parent time to come round to the shock of a separation or come to terms with surging emotions or mental health issues, time can work against you in some scenarios. For example:

If your ex-partner is refusing to agree to any contact with your young child. The delay may affect the parent-child bonding process.
If your ex-partner will use the delay to say that the status quo of no contact or no holiday contact should be maintained, because a change in the status quo would disrupt and destabilise the children's routine.
If your ex-partner argues that the delay in resolving matters means that by the date of the court hearing, it is too late to act. For example, if you are applying for a child arrangement order so your child comes to live with you, and your ex-spouse says it is not in the best interests of the children to move to live with you as they are now enrolled at secondary school or are in exam year, and a move to live with you would be too disruptive.

Talk to Family Law Solicitors

Every family situation must be carefully considered: whilst immediately launching a children's court application may not be the best route to achieve a co-parenting solution, for others, delaying court proceedings works against their best interests. A Family Law Solicitor in London can advise you on the most appropriate timing for your court application and the range of non-court dispute resolution options to try and help you secure the parenting arrangements you seek without the need for court hearings.

Contact OTS Solicitors Today for Expert Family Law Advice.

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