WHO WILL THE CHILDREN LIVE WITH?
RESIDENCE - CUSTODY
This is the first consideration when parents separate. Normally parents are able to decide this between themselves. One parent is the primary carer and the other parent agrees that this should continue. However, if they cannot agree, the Court will make a decision based upon what it considers to be in the child’s best interests.
FAMILY LAW
In reaching its judgment the Court will consider the following:
i) The wishes and feelings of the child.
This carries more significance the older the child is.
ii) The physical, emotional and educational needs of the child.
Also which parent is best able to meet those needs, often both parents are.
iii) The likely effects of any change of circumstances on the child.
The court will consider the child’s day-to-day needs and will place great emphasis on the child’s domestic routine. In deciding who is best able to meet the child’s day-to-day needs the court is unlikely to change a child’s routine unless there is something wrong. The status quo is an important consideration as additional change is often stressful for the child.
iv) Any harm the child has suffered or is at risk of suffering.
This includes emotional as well as physical harm. In a recent case, custody (residence) was transferred to the father, against the children’s wishes (aged 6 and 8) because the Court found that the mother had wrongly accused the father and his family of abusing the children and this was causing the children psychological harm.
It is normally the case that the mother has taken the role of primary carer. However, there is no legal presumption in favour of mothers; all cases are decided in the child’s best interests.
SHARED RESIDENCE
It is possible to make an Order for Shared Residence. It has to be practically possible to enable the child to move between both homes and it has to be suitable to the child’s needs. Some children need the security of one home, especially when other parts of their life are in turmoil when their parents separate and divorce.
More Shared Residence Orders are being made and the child does not have to spend 50 percent of the time with each parent for one to be suitable. It has the benefit of giving both parents an equal status in the life of their child. However, it should not be used to make one parent feel better.
SHARED RESIDENCE WORKING
Research in America suggests that the best situation for the child is for the child to remain living in one home and for the parents to move in and out on a weekly basis. Most separating and divorcing parents would not even consider this option, the level of disruption being unthinkable, plus there being insufficient trust between them to share a home. However, this is a good illustration of what they expect their child to do. Continually living out of a suitcase and constantly moving is stressful for the child as well as the parents and the practical impact it will have on the child needs careful consideration.
The next best option for the child, as he/she gets older, is where the parents live sufficiently close to each other and the child can choose which home he/she stays at on a day-to-day basis. Again, this level of flexibility and child focused prioritising is too much for most parents who wish to retain control.
LEGAL ADVICE
We can offer professional advice on all issues relating to Child Custody or Residence. We recognise that a proceeding with a Residence Application or responding to one creates a highly emotional period and we will aim to work closely with you to ensure that the stress and costs are kept to a minimum.
CHILD’S BEST INTERESTS
In all matters concerning children the welfare of the child and what is in the child’s best interests is the top priority. |
