Who decides who children should live with after separation or divorce?

25 September 2023

The team at Edward Cooke Family Law work hard to ensure the best possible outcomes for children and families, and tailor our approach to each family's circumstances, seeking out-of-court resolution wherever possible. Associate Solicitor and Mediator, Hannah Rogers, explores some of the considerations for determining who a child or children will live with upon separation or divorce, and what options are available.

Are there specific rules governing who a child will live with? 

There are no specific rules regarding which parent a child should live with; often, parents are able to decide this between them. Parents often need to consider their individual work schedules and practical arrangements for school or nursery, as well as ensuring their child spends quality time with each parent. Older children are likely to have their own wishes and feelings about which parent they live with - and how they spend their time. Ultimately, the right choice is one that is in the best interests of the child. 

A child may live with one parent and spend time with the other, or may live with both parents at different times throughout the week. 

What if parents cannot agree who a child lives with?

If parents cannot decide where a child lives, some options are available to help them. First, parents may consider attending mediation to help them reach an agreement. They may want to seek advice from a solicitor and try to reach an agreement through solicitors. If mediation and solicitor negotiation is unsuccessful and a third party is required to make the decision for the parents, they may want to consider arbitration or apply to the court for a Child Arrangements Order.

A Child Arrangements Order is a court order which stipulates who a child will live with and/or spend time with and when. The court can also order that the child lives with both parents, living with each at different times of the week.  This is sometimes known a joint lives with order. The older the child is, the more likely the court is to place weight on a child’s wishes and feelings about which parent they live with. This depends on each individual child and whether the court believes them to be competent to understand the situation. 

How does the court decide who a child lives with?

There is a presumption in law that a child will have a relationship with both parents, unless there are safeguarding issues whereby this would be unsafe. When deciding who a child should live with or spend time with, the court considers the parents’ wishes alongside the family’s practical circumstances and the impact that any decision would have on that particular child. Fundamentally, the order needs to be in the child’s best interests. 

For further advice, please contact one of our specialist family solicitors.