A residence order is an order providing where a child should live. In cases where parents separate and there is a dispute about where children should live, the court decides this according to the child's welfare, while the a main consideration is usually who has been the main carer for the child. In practice where a mother and a father have separated, there is probably a presumption that the mother has been the main carer and if this has not been the case, the father has the burden to prove this.
Where there is a residence order in force, the person in whose favour
it has been made can take the child outside England and Wales for up
to a month at a time without needing the permission of any other persons
who have parental responsibility or the court. Of course this makes holiday
trips abroad easier. Therefore a residence order may be appropriate in a case where one parent unreasonably withholds consent to normal holiday trips abroad or tends to wait until the last minute when travel has become expensive.
Residence orders are also a way to provide someone who is not a legal parent of a child with parental responsibility, for example:
Initially there was case law to say that shared residence orders should only be made if the parents agreed and cooperated. This meant that if there was a real dispute and both parents applied for residence or one parent applied for shared residence and the other one did not agree, the court would not make the order. This has now changed and the courts are more willing to make shared residence orders in appropriate cases.
A shared residence order does not mean that the child will live one week with one parent and the next week with the other parent, or 3½ days each week with each parent. The time the child spends with each parent can still vary, for example, in a 14-day cycle with 5 of 14 nights with the father and the remaining with the mother, or of course the other way round. This will very much depend on the circumstances including work patterns and location of the parents’ homes and the child’s school. Nevertheless, unequal time can determine maintenance payments through the Child Support Agency.
It is always best to try to avoid court proceedings of course because the judge can only make an order. An order does not enforce itself and if someone does not comply with the order or takes a “work-to-rule” approach, matters can continue to be difficult. There will also be issues arising in the future of a child’s life where parents have to work together.
Mediation is an inexpensive way to find solutions outside the court system and it is particularly suitable to resolve issues about children. Our support page has a wealth of resources for parents to help them to parent together successfully, nurturing their child.
For advice on your specific circumstances contact Andrea Woelke at Alternative Family Law: ring us on 020 7407 4007 (+44 20 7407 4007 from abroad) or email us (stating your full name, the full name of the other person in your case and your telephone number on which we can call you).
Please note that we do not have a contract to take on cases on legal aid. If you think you may qualify for legal aid, please use the online calculator to check, or contact a solicitor who has a legal aid contract.
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This is an outline of the law, practice and procedure in England and Wales. It should not be taken as specific advice. All families and couples are different. The law may have changed since this was written and we therefore accept no liability for inaccuracies. Where examples are given, your personal circumstances may vary slightly, but the difference may be significant for the outcome of the legal process. Contact us for specific advice on your own circumstances.
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