There isn’t a legal term of custody in relation to children anymore. In fact, there hasn’t been for a very significant number of years, yet we regularly have parents in the 20-35 age group using the term as if it were common parlance.
Well, it is. Common parlance that is. But it’s not a legal term in relation to children and hasn’t been since the inception of the Children Act 1989 (in force October 1992), at which point parents became ‘responsible’ for their children, rather than having ‘rights’ per se, and where ‘custody’ became a residence order and ‘access’ became ‘contact’. Since 1992 things have changed again (April 2014), when the Children and Families Act 2014 came into force, turning residence and contact into child arrangements orders either to ‘live with’ or ‘spend time with’ a parent or other person.
There’s no real reason for parents these days to refer to ‘custody’ – anyone under 43 (i.e. anyone who was 18 or under at the time the Children Act 1989 came into force, has no reason to even be thinking of the term ‘custody’. But it persists, and I believe it is a combination of things – not least that parents think that their children belong to them (as in ownership) and therefore they talk about custody as they would any other item (of value or not) that was part of the former relationship, e.g. a car, the sofa and so forth. But another reason, and one that is perhaps a tad more influential, is that far more people encounter law as part of their television watching habits rather than any real involvement with law in practice. And if you have ever watched television programmes as a lawyer, I expect you have said ‘that’s wrong’ on more than one occasion!
Lawyers in television shows almost always use the wrong terminology and their advice giving is dubious at best and negligent at worst, which is tragic as their reach to certain sections of society is far greater than real lawyers. There has to be some responsibility on television producers to ensure that they get things right, otherwise they are unconsciously (or consciously) misleading their viewers into unrealistic expectations or fears.
As aforementioned, the terminology is so deeply embedded that even those who were not born at the time that the language was accurate continue to use it today.
It’s a bit like the idea that there is such a thing as ‘common law marriage’…