Divorcing Across Borders: How UK and US Family Law Differ on Custody and Child Support

More families now live across the UK and the US. A British parent settles in America. An American parent moves to England. Children grow up between two homes in two countries. When a relationship ends, one question tends to come first: which country deals with the children, and which deals with the money? And if a court in one country decides something, does it count in the other?

This article looks at how England and Wales handles two issues, arrangements for children and child maintenance. Scotland and Northern Ireland have their own rules. The aim here is general guidance, not legal advice.

The terms do not match

The first hurdle is language. The two systems use different words for the same things.

In the US, parents talk about custody, both legal and physical, and about visitation or access. England and Wales moved away from that wording. A court here makes a Child Arrangements Order, which sets out who a child lives with and who they spend time with. People still say “contact” in everyday speech, but the order is the legal document. American custody maps onto what the UK calls child arrangements.

Money is different too. The US uses child support, usually ordered by a court and set state by state. England and Wales calls this child maintenance, and most cases run through the Child Maintenance Service rather than a judge. The service applies a formula based on the paying parent’s gross income, the number of children, and the nights the children stay over. Courts only set maintenance in limited cases, such as high earners or school fees. For a fuller picture, you can read about how child maintenance works in the UK.

Which country can deal with it

You cannot simply pick the country you prefer. For children, the starting point in England and Wales is the child’s habitual residence. This is a question of fact, not the same as domicile or nationality. In plain terms, it is the country where the child’s life is settled. The Supreme Court confirmed this approach in A v A (Children: Habitual Residence) [2013] UKSC 60, holding that habitual residence turns on the facts of the child’s life rather than the parent’s status.

For the divorce itself, a court looks at habitual residence and domicile. Since the UK left the EU, England and Wales no longer follows the old European “first to issue” race. A court can instead consider whether England is the right place to hear the case. Running cases in two countries at once is slow and costly, so early advice on where to file can help.

The child’s welfare comes first throughout. Under the Children Act 1989, welfare is the court’s paramount consideration, and there is a presumption that keeping both parents involved is good for the child, unless that would put the child at risk.

Does an order count in the other country

This is where people are caught out. An order made in one country is not always recognised in the other. Three Hague Conventions matter here, and the UK and US sit differently on each.

Child abduction

Both countries belong to the 1980 Hague Convention. If a child is wrongly taken to or kept in the other country, the other parent can apply for the child’s return. The court does not decide who the child should live with. It decides which country should make that decision, and it usually returns the child to where they were habitually resident.

Child maintenance

The UK and the US are both parties to the 2007 Hague Convention on the international recovery of child support, which has applied in the US since January 2017. This gives a route to recognise and enforce a maintenance decision across the border, in both directions.

Arrangements for children

Here the two countries differ. The UK is a party to the 1996 Hague Convention, which covers recognising orders about a child’s care. The US has signed but not ratified it. So a Child Arrangements Order made in England is not automatically recognised across the US, and enforcement there depends on the law of the relevant state. Many parents assume an order works everywhere. It may not.

If your ex or your child is in the other country

A few practical points can help.

• Get specialist advice early, ideally in the country where the children are habitually resident. These cases turn on small facts.
• Keep clear records: where the children live, where they go to school, and any travel between the two countries.
• Do not move a child out of their home country without the other parent’s consent or a court order. That can trigger the return process under the 1980 Convention.

Where it is safe and both parents are willing, mediation can be a calmer first step before court, and it can take place online across time zones. It gives parents the chance to agree arrangements themselves rather than leave them to a judge.

One genuine difference matters for US readers. In England and Wales, before most family court applications about children or finances, you usually have to attend a MIAM, a Mediation Information and Assessment Meeting. There is no US equivalent. If you are unsure whether it applies to you, Do I Need a MIAM? sets it out.

Key takeaways

Two countries, two sets of words, two systems. Both care about the welfare of children and about fair support, but they reach those goals in different ways. The border does not have to mean a fight in two courts. Understanding habitual residence, and knowing which Hague Conventions apply, helps parents make calmer and better-informed choices. Where the facts are international, advice that fits your own situation can save time, money and stress.

Family law in the United States is primarily governed at state level, so procedures and terminology may vary between states. This article provides a general comparison only. It does not constitute legal advice. MIAM is a terms used in UK law. It stands for Mediation Information and Assessment Meeting and is a requirement in all cases before mediation starts.