My children want to choose where to live – can they?
The Court operates a no order presumption when it comes to where children live. In other words: it won’t make an order unless it is necessary. So if you can agree between you where the children live, there is no need for an order.
What about when you can’t agree? Either parent can bring an application to the Court for a Child Arrangements Order, which will set out where a child lives. The Court will need to consider the Welfare Checklist.
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.
Do they understand the situation?
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.
A final Order can 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.
Keelys can help