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If you have children, making arrangements for residence and contact will be some of the biggest decisions you will make once you separate or divorce.
You and your spouse will have to decide where your child will live and who will become the primary caregiver. You also need to decide how and when your child should have contact with the non-resident parent.
Many couples are able to make arrangements between them to suit their family circumstances. However, other situations are more complicated, and it is possible that you won’t be able to reach an agreement with the other parent.
Depending on the age of your child, you may want to get their input into this decision. However, their wishes and feelings – and any decision you make – may not be legally binding.
As a child cannot legally decide who they want to live with until they are 16, the responsibility for this decision usually rests with the parents.
At what age can a child decide?
In law, there is no fixed age that determines when a child can express a preference as to where they want to live. However, legally, a child cannot decide who they want to live with until they are 16 years old.
Once a child reaches the age of 16, they are legally allowed to choose which parent to live with. The exception to this is where there is a Court order (such as a Child Arrangements Order) stating that they should live with one parent until, for example, the age of 17 or 18.
If you can come to an agreement with the other parent and your child, then this can help to avoid costly and lengthy Court proceedings.
However, if you can’t agree where your child will live and an application is made to the Court, the Judge will start to take your child’s wishes and feelings into account from the age where it is considered they understand the situation. This is typically from the age of 12 or 13 but will depend on the child and other issues such as any learning difficulties or disability.
The wishes of a child under the age of 12 may also be considered, but the Court is likely to give less weight to these.
What if parents don’t agree?
If you and the other parent cannot agree who your child should live with then the first step should be to consider dispute resolution services. Mediation or negotiation involves working with a qualified professional to discuss the various issues to try and reach an agreement that all parties are satisfied with.
If mediation or negotiation is unsuccessful (or if it is unsuitable – for example, if there are safeguarding issues) then a Court application may be made.
If you go to Court then a judge will decide where your child should live, having considered their best interests and their own wishes and feelings (depending on their age, as discussed above). They will make a Child Arrangements Order setting out who the child will live with and a schedule of contact between the child and the non-resident parent.
A Child Arrangements Order will typically remain in force until your child is 16 years old, although it can be extended to age 17 or 18.
Does the mother always have more rights than the father?
It is commonly thought, wrongly, that mothers have more rights in law than fathers, and the court will automatically side with the mother in disputes involving the children. In any case, whether married or unmarried, providing the child was born after 1st December 2003, and you are named on the child’s birth certificate, either at the time of birth or subsequently, you will have equal parental rights.
If a father is not named on the child’s birth certificate, then he will not have parental responsibility. This can be obtained in one of two ways:
- By agreement with the mother and entering into a Parental Responsibility Agreement, or
- Making an application to the Court for a Parental Responsibility Order.
It is important to be aware that without Parental Responsibility the father cannot consent to the child’s medical treatment or have issues addressed regarding major decisions, such as relocation or choice of schools, for example.
What factors the courts consider when making a decision
There are no fixed rules for deciding issues of residency and contact and, as we have seen, the Court can take a child’s wishes and feelings into account.
The Court’s overriding concern is the best interest of the child and what arrangements will best meet their needs. When making a decision, the Court will consider the welfare checklist as provided by The Children Act 1989:
- The age of the child
- How mature they are
- Whether the Court believes that their views have been influenced by a parent or other person
- Whether the child understands the implications of their views
- Whether the child has considered their decision, or whether they expressed an opinion in the heat of the moment
- Whether the child has been able to explain the reasons for their decision
The Court will also consider how important the issues are. For example, the views of a child may well carry more weight for less important aspects of their upbringing than more significant decisions about where they live and go to school and who they have contact with.
Once the Court has decided whether to take the child’s views into account, and to what degree, they will consider the other factors in the welfare checklist.
They can then decide whether what the child wants is really what is best and whether it meets their needs.
The Court orders available
If you can’t agree which parent your child should live with, you can make an application for the Court to decide.
Having taken into account all the appropriate factors (and your child’s wishes and feelings, if appropriate), the Court can make a Child Arrangements Order.
Child Arrangements Orders replaced Residence and Contact Orders in April 2014. They typically state where the child should live, who they should have contact with, and when.
The Court can order ‘shared residence’ under a Child Arrangements Order. Here, your child would spend a certain period of their time with one parent and a period with the other. It is important to bear in mind that “shared” in this instance does not necessarily mean equality of time.
What if the other parent doesn’t return the child?
If there is no order in place, a parent has not broken the law if they do not return a child after contact, providing that parent has Parental Responsibility. While the police may check that your child is safe, they are unlikely to involve themselves in the situation.
If you cannot resolve the issue with the other parent, you could consider using mediation or negotiation to resolve the dispute. If the issue is still not resolved, you may have to go to Court to either apply for an Order, or to enforce an existing Order (if there is one in place).
If you have welfare concerns about your child and they have not been returned by the other parent, you may be able to apply for an emergency Child Arrangements Order.
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