If you and your child’s other parent are going through a separation or divorce, you are likely to have concerns about where your child will live. There is a set age at which they are legally allowed to decide, but the courts can choose to take their wishes and feelings into account at a younger age if appropriate. We take a look at how the situation is dealt with and the options open to the court.
Deciding Where a Child Will Live After Separation and Divorce
It is generally considered best for everyone concerned if a child’s parents can work together to decide where a child will live and how much time they will spend with each parent. You will need to take into account practicalities such as who is around to care for the child, travel times and whether it is easier for the child to stay with the parent nearest their school during the week.
Your solicitor will be able to negotiate with your child’s other parent on your behalf if necessary to try and find an acceptable arrangement. This can then be put in front of a judge for approval.
At What Age Can a Child Opt Where They Want to Live?
A child cannot legally decide who they wish to live with until they are 16. An exception to this exists where the court has previously made an order that is to last until they are 17 or 18, which will take precedence. If they need to, they can 'divorce their parents' at 18.
Ideally, you and your child’s other parent will be able to agree on a schedule for your child setting out details of which parent they will live with, where this will be, how much time they will spend with their other parent, when this will happen and how they will keep in touch with their parents when they are not together.
What Happens if the Parents Cannot Agree
If you and your child’s other parent cannot agree on child arrangements details, then there are several options open to you. The court should only be a last resort.
Your solicitor will be able to explain the possibilities to you and can also negotiate with your child’s other parent and their legal representative on your behalf.
Where this does not result in an agreement, the next stage is usually to consider alternative dispute resolution. Mediation is a popular option and in most cases (unless domestic violence is an issue) you will not be able to apply to the court for a decision until you have at least considered mediation.
A mediator will let you know how they can help and assist you and your former partner to understand the possibilities that you can consider.
Other options include collaborative law and arbitration, which are both alternatives to court.
Where alternative dispute resolution is not successful, your case can go to court.
Do Mothers Have More Rights to Spend Time with Their Children than Fathers?
The courts prefer that both parents have a meaningful relationship with their children. If they are asked to make a child arrangements order, they will take into account issues such as which parent is best placed to care for the child, for example, because they work flexible hours, and which parent has done most of the parenting up until that point. In many cases, this is the child’s mother, which is why it can seem as though mothers have more rights.
In fact, mothers do not have any more legal rights than fathers to have their children live with them.
What Orders can the Court Make for Children?
If you and your child’s other parent can reach an agreement over child arrangements, the court can seal this into a consent order making it legally binding.
Where it is not possible to reach an agreement, the court can make a child arrangements order setting out what it considers to be in the child’s best interests.
The court can also make a prohibited steps order preventing a parent from taking certain actions in respect of the child, such as removing them from the country or changing their school.
It can also make a specific issue order requiring that something be done, such as having medical treatment or changing a child’s surname.
What will the Court Take into Account?
The court has a welfare checklist that it will use as a guide when deciding which parent a child should live with. It will also ask the family court service Cafcass to prepare a report to help it reach its decision.
The checklist looks at:
- The child's thoughts and feelings, considering their age and comprehension of the situation
- The child's physical, emotional, and educational requirements
- How a change in circumstances might impact the child
- The child's age, gender, background, and other pertinent characteristics
- The potential risk of harm to the child
- The parents' capacity to satisfy the child's needs
- The court's authority in making a decision
What Happens if Your Child’s Other Parent Does Not Return Them After a Visit?
If your child’s other parent does not keep to the terms of the child arrangements order, you should try to talk to them about this initially. If it continues to be a problem, you are advised to speak to a solicitor. Where necessary, they can ask the court to enforce the order. The court has the power to impose sanctions where necessary, including fines and community service.
For more information, see breaching child arrangements orders.
Contact Our Family Law Solicitors
Our family law team has extensive experience in dealing with arrangements for children. We can advise you of the options available to you and work on your behalf to put the best possible agreement in place for your family.
If you would like to speak to one of our expert family lawyers, email us at info@witansolicitors.co.uk or fill in our contact form and we will talk through your situation with you and discuss how we can help.
