When a marriage or relationship comes to an end, it’s up to the parents to decide what will happen to their children and where they will spend their time. Some parents may be able to co-parent and have their children spend equal time in their respective new homes, whereas some parents may want their child/ren with them fulltime and that can lead to a disagreement as to their arrangements.
Custody is the old term used for disputes over where a child should live when a relationship between the parents comes to an end.
The term ‘custody‘ was replaced with the term ‘residence/Residence Order’, which was then replaced with Child Arrangements Order (live with).
According to CAFCASS data, private law proceedings involving children are generally increasing in number, with a 4.2% growth in April 2023, compared with the previous year. It reported a total of 2,958 new private law children’s cases, involving 4,389 children, and noted that most cases involved questions of where a child should live following a divorce or separation, or with whom a child will spend time.
In this article, we’ll be discussing five of the top factors that can be considered in such decisions, if the matter does have to be taken to the family court for resolution.
How is where the children live decided in the UK?
In most cases, parents are able to decide what happens to their children amongst themselves, without the intervention of solicitors or the family courts.
In other cases, where there are disagreements, or one parent is not able to properly look after the child/ren, the case may need to be taken to the family courts.
If the court does need to make the decision on where a child will live, these are five factors that may be taken into consideration, depending on the circumstances for your family:
If domestic violence or abuse is involved
If one of the parents has a known criminal history of domestic violence or abuse, the court will need to consider whether the history and allegations of abuse are relevant to the issue of child arrangements and/or whether with appropriate safeguards in place, a child can safely spend time with that parent. Depending on the specifics of the case, a judge may grant supervised or supported contact for the parent accused of domestic abuse. It may be that there are interim arrangements put in place whilst the family court looks to determine the factual basis of alleged domestic abuse and may seek some assistance from CAFCASS or the local authority in making recommendations as to what child arrangements are in your children’s best interests.
It will depend on whether the allegations of domestic abuse are accepted or disputed as to whether there is need for a fact-finding exercise and/or whether a victim of alleged abuse is stating that the alleged abuse impacts on the ability to have any safe arrangements for contact to take place.
The court will consider whether the child/ren are already living with one parent at the outset of any court proceedings when making interim arrangements as to where your children should live.
If you’re worried about an abusive ex-partner having contact with your child, it’s important to seek expert legal advice to help represent you in court and put your case forward.
The other people who live at home with the child
When parents move into a new home, they may be living with family, friends, or new partners. The people that they choose to live with can have a big impact on their likelihood of having their children live with them.
Similarly, removing a child from a home where they are close to siblings and relatives could be considered mentally and emotionally stressful for children and will be considered alongside the other circumstances.
Whether a parent or guardian is able to provide for the child
The court will also need to consider how capable each parent or guardian is of providing for the child.
Physical, emotional, and educational needs will all factor into this decision. Many parents, especially those earning less than their former spouse, worry that their financial circumstances may come into play here. That typically won’t be the case, as the court will be more concerned about the child’s overall wellbeing; which parent can provide a safe environment and be able to meet with emotional needs?
What the child/ren want to do
If the child is old enough to understand what’s happening and is able to share their wishes with the court, their preferences will be considered. It’s important to note that the child’s preferences alone won’t be the deciding factor in child arrangement (live with) decisions. That’s because other factors may be at play – such as one parent trying to alienate the children from the other, or a child feeling anger towards the parent they perceive to be at fault. Their wishes and feelings are taken into account but viewed in light of their age and understanding, so it is very much dependent on each individual child as to how much weight a court would give.
Who the primary caregiver is
The parent who spends the most time with the children and attends to the bulk of their needs is the primary caregiver. The family court will need to consider this when deciding who the child should live with. This will generally be the parent who handles the majority of the day-to-day parenting tasks such as organising mealtimes, school drop off and collection, attendance at after-school events, helping with homework and so on.
What is the most common child arrangements (live with) in the UK?
A number of child custody arrangements are commonly used in the UK:
- Sole residency: the child lives with one parent but will typically have regular visits with the other parent.
- Joint residency: the child splits their time between each parent’s house. While this may not always mean a child spends equal time at each home and with each parent, it’s a preferred option in many cases.
- Flexible arrangements or co-parenting: This type of agreement is more flexible but is better suited to families with older children. It means the child may spend more or less time with one parent at any given time. The schedule will often be determined by work, travel, and social commitments so can look different month to month or year to year.
If you find yourself dealing with the breakdown of your marriage or relationship and are concerned about ongoing arrangements for your children, a family solicitor can provide expert advice to help you navigate what is undoubtedly a worrying and stressful period. Contact us to arrange a confidential consultation today.
