Deciding where your children should live following your separation from their other parent can be hugely distressing for all concerned. As a starting point, consider the issues discussed in this section and contact me if you need further information or advice.
The court can make a child arrangements order which states where a child lives. This is often confused with 'custody' and 'residence', which no longer exist as legal concepts.
If parents can agree between themselves where their child should live, there is no need for a court order. Mediation or collaboration may help them to reach this decision. Fortunately, most of the time, parents are able to decide together what the arrangements for the children will be on separation. This is always for the best since the parents are best placed to know what arrangements are best for their children!
Sometimes though, it is simply not possible to agree what the best arrangements for the children would be. There may be no alternative but to apply to the Court for an order. The judge or magistrates will help sort things out and perhaps make a decision for the parents.
Support is available from various organisations for parents who have separated and want to resolve difficulties in agreeing child care arrangements. Resolution offer Parenting After Parting workshops which aim to help parents manage the impact of their divorce or separation for their children. You may wish to consider getting support from other organisations who provide information and guidance for parents in your situation. Links to other websites are available on the Resources page.
Not always. There is no legal bias in favour of the mother or the father, although in practice the mother is more usually granted an order determining that the child will live with her (called a child arrangements order - formerly a residence order). This is usually because the mother has been the main carer for the children during the relationship and because the children may currently be living with their mother, in which case, if the situation is working for the children, the Court will be reluctant to change it. However, before a decision is made, the court considers a checklist of factors and the child’s welfare will always be the court’s paramount consideration.
The factors on the checklist require the court to carefully consider which parent is best able to meet the child's day to day physical, educational and emotional needs.
Sometimes the decision is simply a matter of practicalities. Both parents may be equally able to parent their child but the work commitments of one parent may make it more practical for the other parent to be the primary carer. This factor can have a huge impact and historically has resulted in a bias in favour of mothers. However, this is becoming less
Even where one parent does have an order for the child to live with them, the other parent still has parental responsibility. The order does not give one parent a means of making important decisions about the child’s upbringing on their own. The other parent still has a central role to play in their child's life.
Shared residence is where the child lives with both parents. This can be arranged by agreement between the parents or by court order.
Shared residence does not necessarily mean that the child spends an equal amount of time with each parent. It is possible to have a shared residence where the child lives with one parent from Monday to Friday and then lives with the other parent at weekends. The purpose of a shared residence order is often to reassure both parents that the law sees them as equals or to show that neither parent is in control. This is backed up by the point that usually both parents have parental responsibility.
The law sets out a checklist of factors the court must consider. This list is referred to as the “welfare checklist” and requires that the court must pay particular attention to:
- the ascertainable wishes and feelings of the child concerned (considered in the light of his or her age and understanding)
- the child's physical, emotional and educational needs
- the likely effect on the child of any change in circumstances
- the child's age, sex, background and any characteristics that the court considers relevant
- any harm which the child has suffered or is at risk of suffering
- how capable each of the child's parents is of meeting the child's needs
- the range of powers available to the court under the Children Act 1989 in the proceedings
The Children Act 1989 states that the child’s welfare shall be the court’s paramount consideration. This means that nothing else is as important - not even a parents feelings or interests.
One of the first factors considered by the Court when making a decision is the ascertainable wishes and feelings of the child concerned, considered in the light of their age and understanding.
There is no particular age at which a child is able to choose where to live. Their views will become more persuasive as the child becomes older and more mature. However, it may not be considered appropriate for a child to tell parents or the judge what should happen. The wishes and feelings of the child will be considered alongside other factors on the welfare checklist.