Residence Orders
A residence order is an order providing where a child should live. Usually they can only be made until the child is 16. Once young people are 16 they can decide for themselves where they want to live. Only in special cases if it is in the best interest of the child can a court make a residence order to last until the child is 18. One such case would be where a child lives with people who are not (both) the child’s parents, for example grandparents, and the court wants to ensure that they have parental responsibility until the child is 18.
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 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.
Shared residence orders
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.
Shared residence orders are also a way to provide someone who is not a legal parent of a child with parental responsibility, for example:
- one parent’s unmarried new partner,
- one parent’s former partner, who is not a legal parent of the child, but with whom the child spends regular time,
- the biological father of a child who is co-parenting with a lesbian couple in circumstances where he is not legally the father (or the mother’s partner if she is not legally the other parent).
It is always best to try to avoid court proceedings of course because the judge can only make an order, which those involved still have to comply with. 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 Alternative Family Law: ring or email us.
February 2010
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© Andrea Woelke 2009
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Disclaimer
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.
We take no responsibility for the content of any web pages linked to outside Alternative Family Law.