If you’re getting divorced, deciding where your children should live is likely to be one of the most emotive and important decisions you will make. So, who decides where your child should live? Do you have to go to court? What is a Child Arrangements Order? And do courts favour mothers when deciding on residency? Keep reading for answers to these questions and more.
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Who decides who my child should live with?
As parents, you know what is best for your children. So, it is the parents, aided by their solicitors, who generally decide who the child should live with, and you are free to make these arrangements between yourselves.
If you’re getting divorced it’s possible that you’re unable to agree on who your child should live with. Collaborative law or family mediation may then come into play, as this gives you a forum where you will be encouraged to come to an agreement with the other parent.
If you can agree, there is a provision in divorce proceedings called the Statement of Arrangements for Children. It’s not compulsory to submit this, and it’s not enforceable in court and you can change it, but it is evidence of your intention for your child’s residential arrangements.
If after mediation and discussion you’re still unable to decide who your child should live with, you may have no alternative but to ask the court to make a decision (see the section below).
What factors determine who a child should live with?
In many cases your child is likely to live with one parent (residence) while spending time with the other parent (contact). You may also agree on a shared residency arrangement where your child moves regularly between your two homes.
Factors that determine who the child should live with include:
- the wishes of the child themselves, depending on their age (see the section below)
- your child’s emotional and educational needs
- whether one of you has historically undertaken more of the day-to-day care of your child
- whether there have been previous welfare or other problems
- whether a change in circumstances will adversely affect your child
- your respective work and other schedules and how available you are to care for your child.
Can my child decide where they want to live?
Yes, depending on their age. Courts generally start to place weight on a child’s wishes and desires from the age of around 12, although they may take younger child’s feelings into account.
When your child reaches the age of 16, they are legally able to decide where they wish to live unless there is a court order such as a Child Arrangements Order specifying their living arrangements. If there is a court order it lasts until a young person is 18.
Do the courts favour mothers when deciding where a child should live?
There is a commonly-held belief that courts intrinsically favour mothers when deciding who a child should live with. However, in recent years there are many examples of a court placing equal priority on a father’s position.
Parenting roles are changing, with more mothers going out to work and more fathers staying at home as caregivers. The courts are aware of this and so will always pay attention to the best interests of your child, without any gender bias.
Will I have to go to court to ensure I get contact with my child?
No. In most cases, divorcing parents can reach an agreement on the residence and contact arrangements for their children, aided by their solicitors. They can be outlined in a Statement of Arrangements for Children or you can just agree arrangements between you.
If you can’t agree initially, using collaborative law or mediation may help you to come up with a plan that both of you are happy with.
Only when you can’t agree may you have to go to court to get contact with your child. The courts will generally not intervene unless they feel it is in your child’s best interests to make an order.
What factors do the court take into account when deciding where my child should live?
The 1989 Children’s Act states that the paramount consideration of any decision a court makes about a child should be based on their welfare. So, when deciding where your child should live, a court will consider:
- what your child wants (if they are old enough – see the section above)
- what disturbance or upheaval will be caused to your child
- the capabilities of the two parents to meet your child’s needs and care for your child. This can vary from your working hours to whether one of you drinks or takes drugs
- your child’s educational, emotional and physical needs, including everything from food and housing to care and attention
- whether there is any history of harm or abuse (not just to your child but within your relationship).
If my child does not live with me, how can I ensure regular contact?
Unless there are specific circumstances, the law generally presumes that it’s in the best interests of your child to have contact with both parents. So, it’s important that you work out a contact schedule for your child which ensures they get quality time with both parents.
Typically, contact arrangements are worked out between you and the other parent whilst taking advice from your respective solicitors. If you can’t initially agree on a plan, using mediation can help you to come to an agreement which fulfils the needs of your child.
If you can’t come to an agreement, you can apply to the court to ensure your child gets regular contact with you. There are no specific rules in law as to how much contact is allowed so a court will look at your specific circumstances. They may award a Child Arrangements Order to specify exactly what contact your child should have with the non-resident parent.
Contact can include:
- evenings after school during the week
- overnight or longer stays during school holidays.
What is a Child Arrangements Order?
Until recently, the courts made ‘residence’ or ‘contact’ orders detailing where a child should live and what contact they should have with each parent.
Now, the court can issue a Child Arrangements Order to determine where a child should live and what contact they should enjoy with each parent.
If you have parental responsibility, then you can apply to the court for a Child Arrangements Order. If you don’t – for example you are a grandparent – then you may need the court’s permission if you want to apply for an order.
You can apply for such an order if you can’t agree contact or residency rights for your child, even after you have tried mediation. You can also apply later if the other parent isn’t adhering to a previous agreement or order, for example by not allowing you the agreed amount of contact with your child.
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