How Do We Decide Who Our Child Lives With?

When separating from or divorcing your partner, it will be important to decide where your child will live, to ensure their future wellbeing.

Please note: this article describes the legal position in England and Wales; not all of the information is applicable in Scotland or Northern Ireland.

If you’re a parent who is divorcing or separating from your partner, the well-being of your children will be important to you. Since the separation process can be stressful and worrying for a child, how do you go about deciding who your child should live with?

Residence is the modern legal term for a child’s living arrangements, replacing the term ‘custody’. It will avoid any need for legal action if separating parents can agree on:
  • who the child will live with (one parent only, or split between both parents)
  • when the child can see any non-resident parent
  • financial child support arrangements. 
You should think of your child’s emotional as well as financial needs; where will they go to school? How far does each of you live from family and friends who can help them through this unsettling time?

If you and your ex-partner reach agreement on your child’s residence, it is worth having a solicitor draw up a formal agreement setting out the arrangements, in case any disagreements occur later. This is sometimes known as a custody agreement, although the modern term is ‘residence agreement’.

You may wish to agree on child maintenance at the same time, as both parents are responsible for supporting their children financially, whether they live with them or not.  Child maintenance arrangements can either be agreed informally, or made through the government’s Child Maintenance Service.  Child maintenance payments will not affect any child benefit payments, and you will not have to pay tax on them.

It is not always possible for separating parents to reach an agreement. The next step in this case is usually family mediation. A mediator is a person trained to talk with both parents and help reach an agreement between them. The price of mediation varies, but you might be able to get legal aid to pay for mediation, if your income is low. A mediation agreement does not have legal force, but a solicitor can help you apply to the court to make it legally binding. Mediation might be unsuitable, however, if domestic violence or other abuse took place in your relationship.

CAFCASS (The Children and Family Court Advisory and Support Service) is another option; they can help you and your ex-partner agree a Parenting Plan setting out residence and contact arrangements.

Going to court to dispute your child’s residence arrangements is a last resort where discussion and mediation has not worked. You must be able to show that you have tried other steps, such as mediation, before taking court action.

The most common type of court order is a child arrangements order, which sets out where your child should live, and when the child should have contact with the non-resident parent. This has replaced older types of order, such as residence orders and contact orders, but you don’t need to reapply if you already have one of these.  You can also apply to the court to decide on a particular area of your child’s upbringing, such as their education, or to prevent their other parent from making a particular decision on their welfare.

The court process can be lengthy, complex and expensive; a specialist family law solicitor can help guide you through it. It is worth seeking out a fixed fee arrangement if possible.