Child Custody: Who Gets Residence
Does the court always favour the mother?
The court doesn't always favour the mother in a residence case, although there are many groups that think that is the case. Historically, mothers have tended to be the ones that are at home looking after children and so when there is a dispute about residence following separation and divorce, then the person who has been there looking after them all of the time so far is the obvious choice to be favoured. However, certainly as far as The Children Act of 1989 - that deals with these issues - is concerned, there is no preference for one sex or the other. Residence cases are entirely gender-neutral. These days, where you have an increasing amount of working mothers, we are seeing a situation where more fathers are getting residence orders and certainly a lot more shared residence orders. Post-separation and divorce the children spend more equal amounts of times with both parents, possibly subject to those parents arranging childcare. If you've got parents who are both working and both working for long hours, then there are certainly no assumptions that the mother is going to win residence.
Does the reason for my marriage breakdown affect my chances of getting residence?
The reason for the breakdown of marriage is not relevant at all to an application for residence. If a person has left, even it it's because they've gone off with someone else, it's not going to impact on their residence application. At least in so far as that's the reason for the breakdown. Of course, if they're living with someone else who is entirely unsuitable or is a danger to the child, then that's going to be relevant to the residence case, but the actual reason for the breakdown of the marriage is not relevant.
My marriage broke down because I committed adultery - can I get residence?
The fact that the parents committed adultery is completely irrelevant to an application concerning a child. The courts paramount consideration in any issue concerning a child is the child's welfare. And that's nothing to do with the indiscretions of the parents, it's to do with the common sense things: where a child is going to live, whether he/she is loved and supported and all of that and nothing at all to do with adultery.
Will the highest earning parent always get residence?
The parent who earns the most is not necessarily going to be the one that gets residence. In fact, in a lot of cases, it's the exact opposite. For example, in a traditional family arrangement, where a mother has stayed at home and looked after children, her own income is evidently quite low, if any exists at all; whereas the father who's been out, possibly working in the city, earning significant amounts, he doesn't stand in a favoured position as far as residence is concerned. Residence is a lot more to do with the common sense approach as to what's going to be good for the child, what's in the best interest of this child, which parent is best suited to look after the child on a day to day basis.
I'm an unmarried father - do I have any rights to residence?
Unmarried fathers do have the right to make application for residence orders. It's one of the powers expressly granted to him under the Children's Act. Whether they get residence depends on what's in the best interest of the child. There are many unmarried couples living together these days, and what you need to look at is the setup of their family, not whether they're married or not. These days the question of marriage is pretty irrelevant to where a child's going to be living. It's going to be a question of seeing who's being the parent, perhaps, who has been primarily responsible; he has been at home looking after the child. Or in circumstances, possibly where that's shared, then, again, there can be a shared arrangement going forward. But the fact of not being married is not going to impact.
I'm gay - can I get residence?
Being gay used to be one of those things that would mean you could never get residence. Even not that long ago really; in the 1970s and early 80s, the courts were coming to some quite harsh decisions where gay parents were involved. These days, happily, we have a much more progressive system where in cases where gay parents separate the court is giving quite significant support to the other parent; the non-birth parent. It often occurs in the case of lesbian co-parents. The reason for all that is because the courts know through the research that is being done, that what children need is to be loved and supported by their parents, whatever their parents are in their sexuality, and that sexuality shouldn't be a factor that impacts to a detrimental effect on their chances of success.
I'm a step-parent - can I get residence?
It might be unusual for a stepparent to get residence, but it certainly isn't impossible. All the court will consider in a residence case is the welfare of the child; or certainly that's the court's primary consideration. And so if you have a situation where a stepparent, for example, has been at home looking after the child more than the real parent, or the natural parent, then they actually may be in quite a good position to get a residence order.
I'm a grandparent - can I get residence?
It's perhaps unusual for grandparents to get residence orders apart from in circumstances where there are serious concerns for children. You see it a lot in public law care proceedings. Grandparents get residence orders where the local authority might be considering taking a child into care. However, there is no bar to anyone getting a residence order and parents automatically have the right to apply for residence orders. Non parents can apply in certain circumstances or in all circumstances where they have permission from the court and so, if you have a grandparent who has, perhaps, provided a good degree of care for a child and is continuing to do that, then they may be able to secure an order.
I'm an aunt - can I get residence?
It's perhaps unusual for an aunt to get a residence order; we usually see those sorts of orders in cases for example where children are possibly being taken into care, or the local authority are looking at taking children into care. In those circumstances they would always look at another relative, if possible, to look after the children. There's no bar, though, to anyone applying for a residence order; non-parents generally need permission from the court to make an application, but if they've been providing a good amount of care for the child, and particularly in circumstances where the parents may not be around or available, then they might stand a good chance of getting an order.
I'm a distant relative - can I get residence?
It's unusual for a distant relative, particularly, to get residence of a child, bu you might see that sort of situation in care proceedings where the local authority are considering taking a child into care. They will generally look at the wider family for someone to get residence of the child before making a care order. There is no bar to anyone applying for dissent of the Children Act: provided they get permission from the court, have been providing a significant amount of care for a child and are able to continue doing so, then they may well be able to secure a residency order, particularly in circumstances where a parent is, perhaps, unavailable or unwilling to care for the child,
My ex spent more time with the children than me. Can I get residence?
The amount of time that parent's spend with their children or have spent with their children is bound to be a relevant factor to a court's consideration of a residence order. And that said, it's certainly not a case of seeing who's spent the most time with the child to making a decision on that basis. The child's welfare is, of course, paramount consideration and all sorts of other issues fall into place, such as the child's wishes and feelings, for example. If you've got a situation though where one parent has been at home looking after a child significantly, and the other has been out working long hours, for example, then that is going to be relevant, particularly if that parent remains available to provide that care.
My ex has lots of family to help with childcare. Do they have more chance of getting residence?
The fact that one person has a lot of family support is again a relevant factor to an application for a residence order, only insofar that they're able to show that they have the family support to provide additional childcare, for example, if they're working. It's certainly not the deciding factor. The child's welfare is always the court's paramount consideration and there's a number of other issues that the court would look at, such as the child's wishes and feelings.
Will a court ask my child which parent they want to live with?
The Children Act says that the court has to take into account the child's wishes and feelings, read in the light of his age and understanding . So, yes, generally children are spoken to in the context of a residence application. Now that's not to say that they're asked. Certainly the offices from the Children and Family Courts Advisory and Support Service who are the quote social workers, if you like, the people who see children and make recommendation to the court are specifically trained to deal with consulting children in a constructive and helpful way. And so, children certainly wouldn't be asked in a direct way which parent they wanted to live with, but they would be asked questions that would help the officer to understand what's likely to be best. In the case of older children, when children get to 1, 11, 12, then obviously their views are much better-formed. And if a child of that sort of age and up has strong views, then it's going to be a very weighty fact.
Is a court likely to split children up between parents?
The court will always endeavour in residency cases to keep children together if possible, and it's not an attractive argument to put before a court that you want to split children. There are circumstances where this happens, of course. Sometimes children themselves for whatever reason feel that its better to be apart, or for one of them to be with one parent or the other, but it certainly wouldn't be a preference when deciding residence.
What happens if the court decides neither parent is suitable for residence?
If neither parent is suitable for residence of the child then you've got the difficult decision of seeing if someone else is suitable or of the local authority making a care order. It wouldn't usually come out of a dispute between parents as to residence. The court in most circumstances will make a decision that will allow the children to live with one or both of them. If however a court decided within the context of a court application that there were worries about these parents then it would ask the local authority or for CAFCASS (the Children and Family Court Advisory and Support Service) to intervene and make recommendations. And if it felt that the children would actually be at risk if they remained with their parents, then it would look for other options, other relatives, or as a last resort a local authority care order.