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.

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

Agreeing child living arrangements

If you’re a parent who is divorcing or separating from your partner, your child’s wellbeing will naturally be a top priority. Separation can be stressful and unsettling for children, so it’s important to consider carefully who they should live with.

Residence is the modern legal term for a child’s living arrangements, replacing the term “custody”. Ideally, separating parents should try to reach agreement without needing legal action.

who the child will live with, whether with one parent only or split between both parents
when the child can see any non-resident parent
financial child support arrangements

Putting arrangements in place

When making these decisions, it’s important to think about your child’s emotional as well as financial needs. Consider practical questions such as where they will go to school and how close each parent lives to family and friends who can support them during this time.

If you and your ex-partner can agree on your child’s residence, it can be helpful to ask a solicitor to draw up a formal agreement that sets out the arrangements. This can help avoid disputes later. This is sometimes referred to as a custody agreement, although the modern term is a residence agreement.

You may also wish to agree on child maintenance at the same time. Both parents remain financially responsible for their children, whether or not the child lives with them. Child maintenance can be arranged informally or through the government’s Child Maintenance Service. These payments do not affect child benefit, and you do not pay tax on them.

Using mediation and support services

It is not always possible for separating parents to reach an agreement. In that situation, the next step is usually family mediation. A mediator is trained to speak with both parents and help them work towards an agreement.

The cost of mediation varies, but legal aid may be available if your income is low. A mediation agreement is not legally binding on its own, but a solicitor can help you apply to the court to make it legally binding. Mediation may not be suitable where domestic violence or other abuse has taken place.

CAFCASS, the Children and Family Court Advisory and Support Service, may also be able to help. They can support you and your ex-partner in agreeing a Parenting Plan that covers residence and contact arrangements.

When court becomes necessary

Going to court to dispute your child’s residence arrangements should usually be a last resort, after discussion and mediation have not worked. Before taking court action, you will generally need to show that you have already tried other steps, such as mediation.

The most common type of court order is a child arrangements order. This sets out where your child should live and when they should have contact with the non-resident parent. It replaces older orders such as residence orders and contact orders, although existing orders remain valid and do not need to be reapplied for.

You can also apply to the court to make decisions about a specific aspect of your child’s upbringing, such as education, or to prevent the other parent from making a particular decision affecting your child’s welfare.

The court process can be lengthy, complex and expensive, so a specialist family law solicitor can help guide you through it. Where possible, it is worth looking for a fixed-fee arrangement.