What is residency (child arrangements) after divorce or separation?
Residency, previously known as custody, is now legally referred to as a Child Arrangements Order. This determines where a child lives and how much time they spend with each parent.
Even if a child lives primarily with one parent, the other parent will usually still have parental responsibility. As a result, they remain involved in important decisions about the child’s life.
What is parental responsibility and who has it?
Parental responsibility means having the legal right to make decisions about a child’s upbringing, including education, religion and medical care.
In the UK, parental responsibility is automatically given to mothers, regardless of marital status. It also applies to fathers who were married to the mother at the time of birth or who are named on the birth certificate for births registered after 1 December 2003 in England and Wales.
However, if a father does not have parental responsibility, it can still be obtained through a formal agreement with the mother or by applying to the court.
What happens if living arrangements are disputed?
If parents cannot agree where a child should live, the court can make a Child Arrangements Order.
In all cases, the court’s main priority is the child’s welfare. Therefore, decisions are based on what is in the child’s best interests rather than what feels fair between parents.
Courts often consider the current living situation first. In many cases, maintaining stability is seen as beneficial unless there is a strong reason to change it.
What does the court consider when deciding where a child should live?
If you apply for a Child Arrangements Order, the court will look at the full picture of your child’s life.
Firstly, they will consider your ability to provide a stable home, including suitable living arrangements and financial stability. In addition, they will look at how you plan to manage childcare, especially if you work.
Education is another key factor. For example, if a move is involved, you may need to explain how it will affect your child’s schooling and whether it is in their best interests.
The court will also consider your child’s overall wellbeing. This includes access to activities, social connections and quality time with each parent.
Importantly, the court will look at your willingness to support your child’s relationship with the other parent. In most cases, ongoing contact with both parents is seen as beneficial, unless there are safeguarding concerns.
Do children get a say in where they live?
As children get older, their views carry more weight.
In many cases, their wishes and feelings are shared with the court through professionals such as Cafcass.
However, while a child’s preference is important, it is not the only factor. Ultimately, the court will decide what is safest and most appropriate.
What should I think about before applying to court?
Going to court can be stressful, time-consuming and expensive. For this reason, you will usually be expected to consider mediation first unless there are safety concerns.
Before applying, it is important to think carefully about whether legal action is in your child’s best interests. This is particularly relevant if your child has already expressed a strong preference.
Where possible, reaching an agreement outside of court is often the least disruptive option.
What is the most important thing to remember?
Above all, the focus should remain on your child.
Decisions about where they live should support stability, safety and their overall wellbeing. By keeping conflict to a minimum and encouraging a positive relationship with both parents, where safe, you create a more secure environment for your child.
