During a divorce, deciding where your child lives is likely to be one of your most important considerations. You might decide that your child will live with both of you (called ‘shared parenting’) while for many other reasons you may decide that your child should live with one parent. Keep reading for everything you need to know about sole residence, including whether children always live with their mother, what rights you retain if you’re the non-resident parent, and how the process works if you need to go to court to sort out residency arrangements.
Need specialist family law advice?
What is sole residence?
After a divorce, your child will normally live with either their mother or their father.
There are typically two options:
- Your child lives with both of you. While your child may not spend equal time with each of you, they essentially have two homes and live with you both. This is ‘shared parenting’.
- Your child lives with one of you. In this situation you are the ‘resident’ parent while your ex is the ‘non-resident’ parent.
Many parents make these living arrangements between themselves and come to an arrangement as to where their child should live. If you can’t agree, you can consider mediation and, ultimately, applying to court for an order (see the section below).
What does sole residence mean in practical terms?
If your child lives with you, you will make the day-to-day decisions regarding your child’s welfare. You’ll be in charge of setting up a daily routine and you’ll make choices about how your child is brought up. You can expect limited interference from the other parent.
If the other parent has parental responsibility then they have the right to be involved in major decisions about your child’s life, such as where they go to school, what their name is, and what religion (if any) they should be brought up in.
Do children always live with their mother?
No. In the past there may have been a presumption that a child lives with their mother on separation, but these days courts do not favour mothers.
A court makes orders based on what is in the best interests of your child. They will consider which parent is best able to meet your child’s day-to-day needs on an ongoing basis.
There is no bias in the law, and so before making an award the court will look at which parent has provided care in the past as well as considering factors such as your work commitments.
In the past, this process may have tended to favour mothers but, as gender roles change in society and more fathers become caregivers, the law has evolved.
Do I lose parental rights if my child lives with the other parent?
No. Even if your child lives with the other parent on a ‘sole residence’ basis it doesn’t alter the fact that you have a key role to play in your child’s upbringing. A court order does not allow the parent with residency to unilaterally make all decisions regarding your child.
If you have parental responsibility then you are entitled to be involved in key decisions regarding your child, even if you’re not involved in your child’s day-to-day routine.
Remember that even if the other parent has sole residence, you will almost always have contact rights to see your child. For example, this may be alternate weekend contact, and contact during school holidays.
What if we can’t decide where our child should live?
If you can’t come to an agreement about where your child should live, attending mediation could help you to amicably resolve your dispute.
A trained mediator will listen to your concerns in a safe forum, and you will be encouraged to come to an agreement which is in the best interests of your child. You will also typically have to attend a Mediation Information and Assessment Meeting (MIAM) before you make an application to court.
If mediation does not work, or it’s not appropriate for your situation, you may have to apply to the court for a Child Arrangements Order which will state where your child should live.
How does the court process work if I want sole residence?
If you can’t agree where your child will live you can make an application to the court. The court may appoint a Children and Family Court Advisory and Support Service (CAFCASS) officer to prepare a report. They may also speak to your child to establish their wishes and desires (if they are old enough).
If you still can’t come to an agreement before the hearing, the court will decide where your child should live and, if appropriate, what contact the non-resident parent should have. This will be in the form of a Child Arrangements Order (see the section below).
What is a Child Arrangements Order?
A Child Arrangements Order is a court order which will outline the living arrangements (residency) and contact arrangements for your child. They replaced ‘contact orders’ and ‘residency orders’ in 2014.
A court can award sole residence using a Child Arrangements Order if it decides it is in your child’s best interests. It can also deal with:
- How much time your child spends with their other parent
- When your child will spend this time
- Whether this contact should be supervised.
How can I ensure I maintain contact with my child if they live with the other parent?
When you’re coming to an agreement about where your child should live, it’s important that your child has quality time with both parents.
You will need to take practical considerations into account, such as your working hours. For example, splitting the school holidays in half may not be in your child’s interests if you can’t take that time off work. Good quality contact is important and so ensuring you’re available to spend time with your child should be a consideration when deciding contact time.
If you do go to court, then a Child Arrangements Order may state what contact you have with your child and when this should take place. It’s important that you adhere to this order otherwise you could be in breach of the court order.
Do you need help with your divorce?
Get in touch now with one of our panel of specialist local family solicitors.
The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.
