Who will the kids live with?

Following the breakdown of a relationship, it’s one of the hardest decisions you’ll face. Especially as, in most cases, one parent will have to accept seeing their children less regularly than they’re used to – and it can be a huge upheaval for all the family.

Struggling to come to an agreement, parents sometimes assume their children can decide for themselves. But in the eyes of the law, it’s not quite as straightforward as that.

Here our family law solicitors explore the current legal guidance on child arrangements following a separation or divorce – including the appropriate age for children to have their say.

The official law on child arrangements

Legally, a child can’t choose where they live until they’re 16. This is unless a child arrangement order is already in place which states otherwise – sometimes extending it to 17 or 18.

Until then, those with parental responsibility for the child – typically their parents – should technically decide where they live. But in reality, it doesn’t always work that way.

There aren’t actually any set rules on this.

If you wish, you can allow your child to decide for themselves at any age. This is your choice as a parent. People often find that – from being very young – children express their own views about where they’d like to live. And as they get older, they may even start to ‘vote with their feet’, regardless of what you’d prefer or what the law says.

Whether the child in question is 4 years old or 14, the most important thing is that they feel listened to and understood. In an ideal world, separated parents should work together to listen to the child’s wishes and come to a solution that suits everyone.

What if you can’t reach a decision?

This is when things start to get a little more complicated.

When an agreement on child arrangements can’t be reached – between the parents or the parents and the child – this can lead to disputes and unrest within the family. So it’s important to seek the legal advice of a family law solicitor as soon as possible, who can explore the options available to you and help to resolve the matter efficiently and affably.

The two most common options include:

1. Mediation

Before starting court proceedings, most family law experts will recommend that you try an ‘alternative dispute resolution’ method first. In most cases, this will be mediation.

Essentially, this gives you and your ex-partner a chance to discuss childcare arrangements, whilst a specially trained ‘neutral’ mediator guides the conversation – ensuring it stays on track and amicable. And, hopefully, making it a bit easier to come to a mutual decision.

If you’d prefer, you don’t even have to be in the same room to have this discussion. You could opt for ‘shuttle mediation’, in which the mediator conveys messages from both sides.

Or, if you’re keen to involve your child in the decision, ‘child-inclusive mediation’ can be a great option. This gives children a voice and an opportunity to share their thoughts, without the pressure of being responsible for the final decision or feeling like they have to take sides.

A qualified mediator will arrange to meet with your child separately, to ascertain their views on the situation. Then, if the child gives permission, these views are shared by the mediator with you – as the parents – in a subsequent feedback meeting, to help inform your decision.

2. Court proceedings

Mediation is a highly effective method, with most parents finding they just need a neutral environment and cordial exchange of information to settle their differences. But if you’re still struggling to agree on child arrangements, the next step is to take it to the courtroom.

Here, a judge will make the final decision for you.

During court proceedings, your child’s wishes will be taken into consideration – although how much weight they carry will depend on their age and the specific circumstances.

Generally, if they’re aged 10 or over – and believed to fully understand the situation – their wishes and feelings may be used to influence the outcome. But this is just a guideline. The judge will also take into consideration the maturity of the child in question, and whether they’re likely to ‘vote with their feet’ if their wishes aren’t reflected in the Child Arrangement Order.

Aside from your child’s wishes and feelings, the judge is also required to consider a range of other factors, commonly referred to as the ‘welfare checklist’. These include:

• The child’s physical, emotional and educational needs.
• The likely effect on the child of any change in their circumstances.
• The child’s age, sex, background and any characteristics the court considers relevant.
• Any harm which they have suffered or are at risk of suffering.
• How capable the parents are of meeting their needs.

Ultimately, the child’s overall welfare will be the judge’s paramount consideration. And the final decision on child arrangements will always be made in the best interests of the child.

Need help with child arrangements?

Separations can be messy. Tensions are likely to be high, it can be an incredibly difficult path to navigate, and it’s important not to let your children get caught in the crossfire. So if you’re struggling to decide who they will live with, why not get in touch today?

Our family law solicitors are on hand and ready to help.

Experienced and knowledgeable in family law and disputes surrounding child arrangements, we can help to explore your options and reach a solution quickly and easily – whilst, crucially, keeping your child’s best interests at the heart of any decisions made or any action taken.

We appreciate that finding the right solicitor for your specific situation can feel overwhelming. Which is why, we offer an initial consultation free of charge – during which, we can discuss your circumstances and provide tailored legal advice on the best way for you to proceed.

To book yours, simply give us a call on 01744 742360.

Alternatively, you can submit the enquiry form at the top of this page. Or if you have any questions about mediation, child arrangement orders or how our family law solicitors could help, please don’t hesitate to send a message to info@sthelenslaw.co.uk. A member of the team will respond as soon as possible., send an email to info@sthelenslaw.co.uk and we’ll respond as soon as possible.