Do children always live with mum after a divorce?

Do children always live with mum after a divorce? Here, McAlister Family Law Associate, Melissa Jones, discusses how the courts make their decisions when it comes to a Child Arrangements Order and how the best interest of the child is taken into consideration.

In today’s modern society it is quite an antiquated idea that the court will automatically make a Child Arrangements Order, for the child(ren) to live with the mother above and beyond the children’s father or any other care giver.

That might come as a surprise to you when you look at the statistics** below:

• 89% of Parents with Care were female and 87% were under the age of 50
• 88% of Non-Resident Parents were male and 79% were under the age of 50

The above** was taken from https://www.gov.uk/government/statistics/separated-families-statistics-april-2014-to-march-2021-experimental/separated-families-statistics-april-2014-to-march-2021-experimental

Of course, times have changed and 15-20 years ago, the answer to the above question would probably have been yes.  Not that it was the right thing or that it was defined in law, but that was the experience and sign of parents’ roles at that time.

That is why it is sometimes a surprise to parents, who are either in court or contemplating a court application to hear that it not guaranteed that the court will make an order for the child(ren) to live with them.

Whilst a high proportion of family law cases today normally involve disputes between the children’s mother and father, it not uncommon for cases to involve other parents/care givers such as:

• Civil partners/Same sex partners
• Non-Civil Partners- second parents for example
• Grandparents
• Aunts
• Uncles
• Extended family members

How does the court decide who a child should live with?

If you find yourself in the situation where you cannot agree arrangements with the other parent, you can make an application to the court for one of the following orders:

• Child Arrangements Order- for the child(ren) to live with you or
• Child Arrangements Order- for the child(ren) to spend with you

The law currently presumes that it is in the children’s best interests for each parent, even when they have separated, to continue to be involved in the lives of any and all of their children, unless such involvement may subject them to a risk of harm.

The Best interests of the child

Associate, Melissa Jones, recalls one of the earliest cases in her career, in the year 2011 when the Family Court granted a “Residence Order” to the father in a family law dispute as to where the child should live. Whilst the terminology might have changed, with the application now being referred to as an application for a Child Arrangements Order, she makes the following point “it should not have come as a surprise, then or now; the court’s decision making has been and continues to be based on what is in the best interests of the child”.

The most important consideration of the Court, and one which you should keep in front of mind, is that it will always consider what is in the best interests of the child, as opposed to any perceived “rights” of any of the adults involved.

The Court will determine the facts and consider the Welfare Checklist to help it decide upon what is in the child’s best interests. This Welfare Checklist includes things like the below:

• the child or children’s age and maturity
• physical and emotional needs of the child(ren)
• wishes and feelings of the child
• any harm which the child has suffered, or is at risk of suffering
• capabilities of the parents to meet the physical and emotional needs of the child(ren).

In law, it is never a “one-size-fits-all approach”. Every case will have its own set of circumstances and the court will also have regard to the individual needs of the child(ren).

Shared care

In the Family Court there is a presumption of continued parental involvement by both parents, often referred to as shared care. Some parents are now used to a  “shared care arrangement” or this can be ordered by the court.

Whilst for some families this may mean an equal division of time, this may not work for other families and sometimes parents often mistake shared care as meaning an absolute and strict division of time (7 days with you, 7 days with me).  The children’s needs are paramount and the best interests of the children will always be at the heart of any and all decisions made.

So, can you tell me, do children always live with the mother?

The short answer is no. There may of course be times when the court says this is in the best interest of the child(ren) but  equally there may be times where the court says the children should live with the father. Another example is that the court orders  “shared care” so that the children spend their time between two households.

At McAlister Family Law we have the experience, compassion, and energy to achieve the best possible outcome for you. Please get in touch today. We’re here to help you.