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At what age can a child choose who to live with?

Date:15 MAY 2020

At what age can a child choose who to live with? A child cannot legally decide who they want to live with until the age of 16 unless there is a child arrangement order in place that has been extended until they are 17 or 18 years old. 

Until then it is ultimately the decision of the parents to decide or if they cannot agree, a child arrangement order will specify where the child lives. 

How do you decide who a child lives with after a divorce?

Deciding how the children will spend their time with both parents after a divorce or separation is one of the most important decisions to make. 

It is the decision of the parents to decide who is going to be the primary care-giver (meaning the person the child lives with) and the time spent with the non-resident parent. 

What if both parents agree?

For some families, the decision will be clear while for others, for example, if one parent works away frequently, it is more complicated.

The right choice should be the one that meets the best interest of the children, not the parents and there are many options open as to how children split their time between their parents. 

If parents can agree then they can make arrangements between themselves avoiding length and expensive legal proceedings. 

What if parents cannot agree?  

If the parents cannot agree who the child should live with on divorce or separation they can use mediation or negotiation via their solicitors to reach an agreement.

These options should be considered before any court application is made.  

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How can mediation help? 

Mediation can support separating parents to discuss matters, including arrangements for the children and help the parents to try and reach an agreement on practical issues such as where the children should live. 

A mediator cannot provide legal advice and therefore you should always seek independent legal advice on any agreement reached. Mediation is not suitable for all cases, particularly where there has been domestic violence.

What happens if you go to court? 

Child arrangement orders 

If necessary, you can make an application to the court for a child arrangements order. This will mean that a judge decides where the child will live with consideration of the child’s best interests, wishes and feelings. 

The child’s age will determine how much influence they have on the judge in respect to their wishes and feelings. Generally speaking, a child who is 12 years of age/in their early teenage years will have more influence in respect to their wishes and feelings than a much younger child. 

The majority of child arrangement orders are in place until the child turns 16 years old but they can be extended to 17 and 18 years old. 

Residence orders

If you have an order that states that the children live with you (formerly known as a residence order) this also means that you are able to take the children out of the jurisdiction of England and Wales for a period of up to 28 days without having to obtain the consent of the other parent.  You do not have this ability when you have an order that the children spend time with you.

Is this process different between married and unmarried parents?

The process is the same for married and unmarried parents, as long as the father is named on the birth certificate and therefore has parental responsibility and there is no dispute about this.

What are the father’s options if he does not have parental responsibility? 

If a father is not named on the birth certificate and is not married to the mother then he does not have parental responsibility automatically.

The father has the following options to acquire parental responsibility without issuing court proceedings: 

  • By marrying or becoming the civil partner of the mother
  • Becoming registered as the child’s father (re-registering the child’s birth with the mother’s consent and as long as no father has been previously named)
  • Entering into a parental responsibility agreement with the mother
  • Becoming a formally appointed guardian

If it is necessary to make an application to the court then a father can also obtain parental responsibility by obtaining the following:

  • A parental responsibility order
  • A child arrangements order in which the father is named as the person who the child/children with live with and therefore a separate parental responsibility order must be made
  • A child arrangements order is made in which the children spend time with their father. The court must then consider whether it would be appropriate for a parental responsibility order to also be made.

This article was first published on the Stowe Family Law website, and is reproduced with permission.

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