Deciding where and which parent a child will live with can be one of the most dreaded aspects of separation. Even where they want to reach an agreement, fears about reduced family time can make conversations about living arrangements particularly difficult.

Although there is no single arrangement that suits every family, the aim should be to establish a safe and workable routine that meets the child’s needs and allows them to feel settled.

Understanding “living with” arrangements

Parents and lawyers often use the words “residence” or “custody” when discussing where their child will live. However, the relevant court order now refers to a child arrangements order, which specifies whom a child lives with and when they spend time with another person, and replaces the former residence and contact orders.

Where both parents are named as people the child lives with, this recognises that the child has a home with each of them, although the time spent in those homes may differ.

A “lives with” arrangement does not give one parent unrestricted authority over their upbringing, and provided both parents have parental responsibility, important decisions will still require consultation, subject to any relevant court order stating otherwise.

If there is no dispute between the parents and they agree where their child will live without asking a court to decide, no order is generally necessary.

Children can live with both parents

A child can live with both parents following separation, although shared living arrangements do not have to involve an equal division of time. For some families, alternating weeks works well because both homes are close to school and each parent can manage the ordinary demands of the school week. In another family, a child might spend more school nights with one parent but have substantial time with the other during weekends and holidays.

The suitability of either arrangement depends on the individual child and the family’s circumstances. Equal time may provide continuity where both parents have always shared daily responsibilities, but it can become exhausting if the child faces a lengthy journey whenever they move between homes.

Practical considerations that shape the arrangement

The following are common areas of dispute:

  • School is often central to discussions about where a child will live, and remaining close to an established school can help preserve friendships and give the child some continuity during a period of considerable change.
  • Distance between homes matters for similar reasons; a journey that feels manageable at the weekend may be much harder before school, particularly when traffic is unpredictable. Parents should consider whether the child can arrive rested and ready to learn, rather than whether the journey is technically possible.
  • A parent who works shifts may still provide substantial care, especially if their rota is predictable; however, a proposal should explain how childcare will work in practice, including what happens when a shift changes unexpectedly.
  • Keeping children with their siblings will often be the best option, although their individual needs may sometimes justify different arrangements. An older teenager’s commitments, for example, may make a routine suitable for a much younger sibling impractical.

Neither parent takes priority

Neither parent has a stronger claim for the child to live with them because of their gender, and being the mother does not guarantee that the child will live primarily with her. What each parent has done for the child can nevertheless be significant; for example, if one has managed the lion’s share of daily care, it may help explain the child’s attachments and established routines.

The question is whether the proposed arrangement is realistic and meets the child’s needs, taking account of how the family has functioned so far.

When a court decision becomes necessary

When discussions reach a stalemate, parents may need to ask the family court to determine where their child should live. Court intervention can also be necessary where an informal agreement would leave a child exposed to harm. Any immediate concerns about safety should be raised promptly so that urgent steps can be considered to protect the child.

The judge’s task is to decide which arrangement best serves the child’s welfare. The statutory welfare checklist provides a framework for that decision, requiring consideration of the child’s individual needs and how a proposed move or new routine might affect them. Each parent’s capacity to provide suitable care will also be examined. Where there are concerns about past harm or future risk, these must be considered as part of the overall assessment.

The court can request a report from Cafcass to help it understand the family’s circumstances. If parents give conflicting accounts of events that could affect the outcome, the court will decide whether those matters require further investigation or a separate fact finding hearing.

Changing living arrangements later

Living arrangements need to accommodate the realities of a child’s life, which may look quite different several years after their parents separate. A teenager may find that moving between homes interrupts revision or makes doing their hobbies difficult. Equally, changes in a parent’s circumstances could allow them to take a greater role in everyday care, making a different pattern worth exploring.

Where arrangements are informal, parents can discuss what needs to change and settle on a revised approach. Involving the child appropriately in those discussions can help them understand what to expect, without leaving them feeling responsible for the decision. A gradual transition may also make the new routine easier to manage.

If arrangements are governed by a court order, agreeing occasional flexibility does not alter its legal terms. Parents considering a permanent adjustment should therefore take advice about having the order varied, so that it accurately records the arrangement they intend to follow. Where they disagree, an application can be made for the court to determine whether a change would be appropriate.

If you would like advice on child residence and living arrangements, please get in touch with our team. We can help you address concerns about your child’s current routine or explore how their care could be organised following separation.

View related pages: 

Child Arrangements Child Contact Disputes
Domestic Abuse & Child Arrangements Parental Responsibility Orders And Agreements
Parental Alienation & Family Law Child Residence & Living Arrangements
Supervised & Supported Child Contact Complex Child Arrangements Disputes
Varying & Enforcing Child Arrangements Orders Fact-Finding Hearings In Children Proceedings

 

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Children's Issues

The scenario below does not relate to any individual clients of ours but the facts and the outcomes relate to some similar experiences in our practice.

Scenario Analysis Example #1

The Scenario

Mr and Mrs H separated. Mr H moved a few streets away and their eldest boy (now 15) lived with him. The younger children (14 and 12) stayed with Mrs H but the children live near each other and attend the same school.

Mrs H remarried and wishes to move to her new husband's city. Mr H sought advice about residence of the other children. He told us the middle child wanted to stay at school with his friends.

Our Solution

There is no set age at which a child can "choose". Nevertheless in reality it would be hard for Mrs H to resist the 14 year old's wishes. We needed to be careful not to stress the children. Rather than issuing proceedingswe arranged mediation for Mr and Mrs H to discuss the issues.

We advised Mr H to be flexible regarding contact. They reached an amicable arrangement for all children to live with Mr H for the school week and half weekends; and flexible school holiday arrangements.

Henry Brookman Discusses: Childrens Issues

If you have questions, contact us now, we can help you.

Children's Issues FAQs

Here is a selection of common questions relating to how children are involved in and affected by the divorce process. If you have unanswered questions, please contact us using the form above or you can contact us here.

Who Can Apply For Child Arrangements Orders?

Either parent can apply for orders relating to children as well as anyone with parental responsibility for the child. Sometimes grandparents or other relatives ask us if they can apply for child arrangements orders. The answer is that they can but they need to clear an extra hurdle first by seeking the permission of the court to do so.

Can I Use Mediation To Settle Disputes About The Children?

Yes. Most child issues are settled through negotiation and mediation. Court is often seen as a last resort. The mediation process is less formal than the court process and many of our clients report that they find mediation less stressful than the idea of going to court. Agreeing arrangements also gives you more of a sense of control over the issues. And it’s possible to formalise anything you agree with your ex spouse through mediation by making the agreement part of a Consent Order.  Once you get this approved by a family judge it’s legally binding.

Do we have to go to Court to decide what will happen to the children?

No, in almost all cases this is not required. Typically, the parents agree and often formalise the arrangement with the assistance of their lawyer. Where parents agree there is usually no need for any court order at all. If the parents cannot agree it would then become a matter for the Court to decide.

Can I insist that I see my child on special occasions, such as birthdays?

Normally the non-resident parent will be able to agree to see their child on significant dates and occasions. This can either be agreed informally with the other parent but if there is a dispute then the non-resident parent could apply for a court order.

Can I take my child to live abroad after divorce?

Permission will be required from the other parent or via a court order. Taking your child abroad for longer than a holiday would be considered abduction and the other parent could apply to the Child Abduction Unit to have your child brought home.

What happens to step children regarding custody and maintenance?

If the step-parent has taken the role of parent during the marriage and their ex-spouse (the biological parent) is not able to provide for the child, the step-parent may then be required to pay child maintenance.  Whilst it is typical for the child’s biological parent to gain residence, this is not always the case. It will depend on how capable the parents are to provide for the child what is in the child’s best interests.

Does the CMS (formerly the CSA) have to be involved in deciding child maintenance?

No. Whilst you may use a CMS calculation to aid with deciding a maintenance payment figure, it is then common for a private maintenance agreement to be set up by your lawyers. The CMS or court do not then need to be involved. If required, 12 months from the agreement, the CMS can become involved if either party wishes it.

Can I change my child’s surname after divorce?

Changing your child’s surname would require the other parent’s written consent or a court order.

Will the family home be retained for the child to live in?

If it is in the best interests of the child to remain in the family home with one of the parents it is possible that the court will order the home to be retained for a set length of time.

Can I move with my child to another part of the UK?

If you are the resident parent, you do not need the other parent’s permission to move with your child within the UK. However, the other parent could request a court order preventing you from moving whilst the situation is looked at in more detail. In making a decision as to the child’s living arrangements, the court will always look first at what is in the best interests of the child.

Can I take my child abroad on holiday?

If you have a court order setting out that the child is to live with you then you do not need ask permission from the other parent to go on holiday abroad for up to 28 days. If you do not have a court order, you will require the permission of the other parent. If the other parent will not give permission, you can apply for an order to go on holiday with the child.

Will my ex-spouse having a new partner affect what contact they can have with our child?

Typically no. However, if you have good reason to be concerned about your child’s welfare with regard to your ex’s new partner, you could apply for conditions to be imposed upon the existing contact arrangements.

Can our child choose which parent they live with?

If the child is old enough and has sufficient understanding to state a preference, the court will take into account their wishes. It is however unlikely that the child will simply be asked to choose because it is an unfair question and the reasons behind a child’s answer may be mixed. The court will however also consider wider factors, including each parent’s ability to meet the child’s needs, the child’s safety and how the new change in circumstances may affect the child.

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About The Team

We are a specialist divorce and international divorce family law team, advising clients in the United Kingdom (specifically England and Wales) and throughout the world. We have a very people–orientated approach to working with clients. Henry Brookman has practised law for over 45 years, and our team has a wide range of skills and expertise. We are recommended by the Legal 500 and have been awarded the Law Society’s quality mark, Lexcel.

Partner

Philip Morton

Recommended by The Legal 500, Philip is an expert in all areas of family law, including domestic and international financial disputes, fraud and commercial dispute resolution.

Partner

Henry Brookman

With over 45 years' experience, Henry Brookman is the senior member of the team. He is described by The Legal 500 as ‘shrewd, savvy, sagacious and highly experienced’.

Partner

Natasha Slabas

Expert in all areas of family law, often involving cases that have an international element, including work in relation to financial settlements following divorce.

Partner

Mark Rennie

Mark is the Group Head of the Horsham Family Law team. He specialises in all areas of matrimonial law, including complex divorce and financial disputes, and is recommended by The Legal 500.

Partner

Nigel Winter

A highly experienced solicitor, Nigel has expertise in collaborative law, divorce, contested litigation, relationship agreements, and children matters. Nigel is recommended by The Legal 500.

Partner

Samantha Jago

Partner at our Guildford office and recommended by The Legal 500, Samantha has specialist expertise in divorce, children matters, complex international cases, and is a trained mediator.

Partner

Joanna Potbury

Family law specialist based in Brighton advising on divorce, cohabitation agreements, children, post-nuptial agreements, and domestic violence. Joanna is recommended by The Legal 500.

Partner

Kevin Danagher

Kevin specialises exclusively in family law, advising on all aspects of relationship breakdown, divorce, same sex marriage, marital agreements, and international family cases.

Partner

Ella Welsby

Known for her sensitivity and discretion combined with significant expertise, Ella advises on all family issues including high-value and multi-jurisdiction divorce and complex financial and children matters.

Partner

Gemma Garrett

Based in Horsham, Gemma is a specialist advising on all areas of family law including divorce and separation (often involving jurisdiction issues), complex financial matters, and children matters.

Partner

Alicia Cenizo

Alicia is a Partner in the family team and advises on all elements of family law, particularly private children work, including matters with an international element such as relocation.

Partner

Rachel Osgood

Rachel specialises in financial claims on divorce and separation with a particular emphasis on high value cases and those involving inheritances, family businesses and claims by adult children.

Partner

Nisha Tayal

With over 20 years of expertise in family law, Nisha specialises on all aspects of relationship breakdown and is trusted by clients for her discreet, tailored advice.

Family Director (filex)

Natalie Matthews Bunting

Natalie is a specialist in divorce and financial remedy, including high value cases involving multiple pensions, multiple properties and multiple businesses.

Senior Associate

Lauren Blythe

Lauren is a highly regarded specialist family law solicitor, based at our Guildford office. She advises on divorce, family finances, children matters, domestic abuse, cohabitee issues, and relationship agreements.

Senior Solicitor

Susan Hayes

Susan qualified as a solicitor in 1992 and is based at our Brighton office. She is a longstanding member of the Law Society Specialist Children Panel and Family Law Panel. Susan is also a trained Collaborative Lawyer.

Associate

Rachael Au

Rachael is a highly capable member of the family team in Brighton. She specialises in family law, advising on divorce, civil partnerships, financial matters, and children issues.

Associate

Alice Barrett

Alice advises and supports clients on a range of family law matters including divorce, separation, financial remedy, private children matters and emergency applications.

Associate

Amelia Groom

Amelia has experience across a full range of family matters, including divorce, complex disputes regarding finances that range from trusts through to cryptocurrencies, and arrangements for children.

Associate

Natalie Higham

Natalie is a Family Legal Executive who advises individuals on divorce, separation, financial remedies available to them on the breakdown of their relationship, and children matters.

Associate

Katie O'Kelly

Katie advises on a wide range of family law matters including co-habitation, divorce and separation, financial remedies, and private children law matters.

Solicitor

Sophie John

An experienced solicitor, Sophie advises on matters relating to divorce, financial separation in both marriages and cohabiting relationships and children arrangements.

Solicitor

Alex Robinson

Alex supports the family team on a variety of matrimonial and Children Act matters that are often complex and with an international element.

Paralegal

Michelle Davies

Part of the Family Law team, Michelle supports on a variety of cases involving divorce, finances, children matters and day to day enquiries.

Paralegal

Isabelle Basson

Isabelle is responsible for following up day-to-day enquiries, administrative case management and generally supporting the Family team fee-earners.

Paralegal

Amelia Mahraj

Amelia is responsible, in her current role, for dealing with day-to day enquiries, administrative duties and supporting fee earners.

Paralegal

Aimee Atalay

Aimee provides dedicated support to the Family and Contentious Probate teams across a diverse range of matters. Aimee studied Law and Criminology at the University of Kent.

Paralegal

Izzy Minor

Izzy Minor is a Paralegal in the Family Team, supporting fee earners, and is a qualified Advanced CILEx Paralegal (MCILEx), holding a Diploma in Law and Practice.

Paralegal

Madison Bryant-Pollins

Madison provides dedicated support to the Family and Contentious Probate teams, including case management and the provision of clear, empathetic assistance to clients.

Secretary

Victoria Delatouche

Victoria is a highly experienced Legal Secretary and a long-standing member of the team. She provides secretarial support for the office.

Secretary

Michelle Louison

Michelle provides secretarial support to Henry Brookman. A very experienced family law secretary, Michelle has worked in law for over 12 years.

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