What to do if you can’t agree on who your child should live with

by Nadine de Souza

It's best if you can sort out amicably with your spouse who your children will live with. It will be financially more cost effective, but most importantly, you can maintain a good relationship with your spouse and you both have an element of control in the decision-making process. If you have children old enough to understand, then try not to involve them in any disputes, but if age appropriate, check that they are happy with any arrangements that you’re proposing.

How to proceed when you agree on childcare

If you can agree arrangements, then you need to tell the court. This can be done in the Statement of Arrangements for Children, which is submitted with your divorce petition. Your spouse should also sign the Statement of Arrangements for Children to show that they agree with the proposals. There should then be nothing more for the court to do.

If the court isn't happy with the proposed child care arrangements, then it can suspend your final divorce paperwork. The court will let you know and explain what further information and action is needed from you.

If you both can't agree on child custody

There will be many people who can’t agree on the children’s living arrangements with their spouse because the relationship is simply too strained. Issuing a court application is likely to irreversibly damage any relationship you have with your spouse, so think carefully about going down this route.

To start court proceedings, you need to fill in a lengthy form called C100. You will need to pay a fee to the court. The court fee changes, so check the court service website for up-to-date information.

The court will arrange a short court hearing called a Conciliation Appointment to see if you can reach an agreement with the judge and a Children and Family Court Advisory Support Service (CAFCASS) officer, who usually has a background in social work. If your child is over nine years old, then they must attend this hearing.

If you can’t agree a solution at this hearing, then the judge will issue orders about how the case will progress and what paperwork needs to be filed. It's likely that the judge will ask for a full report from the CAFCASS officer. They will meet with you and your children and make recommendations to the court. Ultimately, there will be a final court hearing with reports, statements and evidence and at the end of this a judge will make a decision. It's a lengthy and costly process.

How the court makes its decision

There are no hard and fast rules about where and with whom a child should live and it's not true that children always end up living with their mothers. The most important thing to consider is the child’s welfare, not what the parent wants.

The court will consider the child’s wishes and feelings, depending on their age and understanding; the child’s physical and emotional needs; the child’s age and gender; the effect of any change of circumstances on the child and the ability of each parent to meet that child’s needs.

In making its decision, the court will consider what is in the best interests of the children as well as the children’s wishes and feelings. The older the children are, the greater the weight that will be attached to it.

The court will look at who has had the day-to-day care of the children and been their ‘primary carer’. The court will want to try to keep the same arrangements to give the children some stability. 

There are various things that you can do to try to improve your chances of getting the children to live with you, rather than your spouse. To find out what these invaluable tips are, read Lawpack’s guide How to get a Divorce written by specialist divorce lawyer Punam Denley.

It used to be the case that judges felt that children should live primarily with their mothers. However, the use of joint and shared residence orders is increasing. This is because it reflects the reality of having two working parents. You don't have to have ‘equal time’ with the children to obtain this order; the courts have said that ‘substantial contact’, which might mean seeing the children every other weekend plus a day or two more in the week, is enough.

Help from Lawpack

All the divorce forms you need – and expert guidance on how to use them – can be found in Lawpack’s Separation & DIY Divorce Kit.

If you need assistance in completing the forms, then you can use our DIY Divorce Service who will complete them for you. With our Managed Divorce Service they will complete them and also file them at court for you.

If you want more in-depth information from a divorce lawyer about all aspects of divorce law then read our guide, How to Get a Divorce by Punam Denley. Packed with tips and expert advice to ensure that you get through the divorce process smoothly.

Other information

Published on: April 3, 2015

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