On a subsequent breakdown of a relationship, whether married or not, deciding with whom the children are to live with can be a difficult decision to make. Especially as one parent may have to accept seeing their child(ren) less regularly than usual. There is no set rule on how a decision is made and the Family Court rarely gets involved in how parents should make decisions.
Many parents believe it is up to them to make the decision on behalf of the child(ren) about whom is to be their main carer, while some parents believe that the decision should be made by a particular child in question. There is no set rule and much depends on the parenting style of a particular parent and/or family and the age and understanding of the child.
The Court consider the age of the child and determine whether they are of the maturity and understanding of the current situation before determining whether the child’s opinion should be considered. Unfortunately there is no set age as children mature at different ages. Parents struggle to make certain arrangements and impose certain decisions on a child as they become older i.e. which parent to live with, how much contact they are to have with a particular parent etc. as the law is unclear.
Deciding What Parent to Live With
When deciding which parent to live with certain considerations must be taken into account, i.e. practicality of certain arrangements. In many cases, the mother is the main carer for the child(ren) and issues arise in respect of contact for the child(ren) rather than whom the children shall live with.
Some issues do not require the Family Court to intervene automatically. If two parents are unable to come to an agreement on whom the child(ren) shall live with then the parents are able to attend Mediation (MIAM) together. It’s important to attend Mediation before considering any other options. Mediation is where two parties come together with a neutral third party who will help the parties come to an understanding and an agreement. For the purposes of Mediation, parties do not have to be necessary in the same room as each other. If this is something that you wish to discuss further please do not hesitate to speak to a member of our Family Law team who can provide advice on your matter and refer you to a local mediator.
Mediation allows two parents to come to a mutual decision about whom the child(ren) shall with and how regular the parent is to have contact. Any agreement that is made during Mediation is voluntary between the parties who attend. A mediator can discuss the methods of contact available to certain parents i.e. direct contact, regular letters and cards to the child etc. Mediation may not be suitable where one party has made allegations of abuse about the other.
When a Decision Cannot be Made
Fundamentally, when an agreement cannot be reached between parents and/or the children this can lead to dispute and unrest. If Mediation is unsuccessful the Court are able to get involved.
The Family Court’s Role
The Court’s paramount consideration is the welfare of the Child. If they believe that a dramatic change in their life i.e. a change in residence from one parent to the other will have a detrimental effect on their day to day life, the Court will strongly resist changing the agreement. The Court will listen to a child’s opinion and place more weight on their views, if they are of an age and understanding.
The Court will not make this decision alone. The Family Court can rely on the assistance of CAFCASS (Children and Family Court Advisory and Support Service). CAFCASS are hands on with the child(ren) of the proceedings and, if appropriate, speak to them objectively and consider their opinions on the matter. CAFCASS are highly trained to speak and consider a child’s wishes and welfare. CAFCASS will not only speak to the child(ren) in question, they will also take time to speak to both parents, witness contact with both parents with the child(ren), and determine what is best for the child.
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