Applying for a residence order!

If you wish to apply for a Residence Order (formerly known as custody) of your children, you will need to fill out a Children Act form C1 which you can access from the .gov website. 

The order that you will be asking the Court to consider is a residence order. It is possible to share custody with your ex-partner, although the courts sometimes will not grant these types of orders due to the fact they do not want the order to harm the child. 

Having joint custody will mean upheaval for the child, and the child will have to live in two separate homes. A residence order also gives the parent with parental responsibility to look after the child during the lifetime of the order; the order will usually last until the child is 16 years old.

What is a residence order?

A Residence Order is an order granted by the Family Proceedings Court. The order outlines which parent the child should reside with. 

The order will also outline details of whether the other parent can visit the child and if so it will specify dates and times that this can happen, it will generally be a regular day every week or month. 

Once the order has been issued, Parental Responsibility of that child will be passed over to the person that the child will be living with. A residence order also allows a parent to take the child they are in care for on holiday abroad for a maximum period of one month without needing to seek the other parent’s consent. 

If you decide you would like to move to another country permanently with your child, you can only do this with the other parent’s consent, or by order of the Court. As well as this, a resident order does not allow you to change the child’s surname without written consent from the other parent. 

If you do get granted with a residence order, this does not give you the right to make decisions with regards to your child’s upbringing. Both parents still have Joint Responsibility in determining how your child is brought up.

Who Can Apply For a Residence Order?

The child’s legal guardian or parent can apply for a residence order. As well as this, the married step-parent of a child can also apply, as long as the child has been living with the step-parent as a member of their family. 

It is possible for a person who has lived with the child for at least three years to apply. When making a residence order, the Court will consider several issues:

• The child’s wishes and feelings. The Court does not have to act on the child’s wishes and feelings solely, but they must take them into account.
• The child’s education, mental and physical needs.
• The likelihood of a change to the child’s life and routine.
• The child’s background, upbringing, age and gender. As well as anything else that the Court feels would affect the child.
• If the child has suffered any harm while in care of either parent
• The capability of each parent to care for the child. This includes looking into things like the work commitments of the person applying for the residence order, and whether their routine is conducive to caring for the child.
• Looking at the routine that he child has now and how that can stay the same with minimal change.

If the child’s parents are not married, the mother has sole parental responsibility until the father requests to gain parental responsibility. The father can request to gain parental responsibility either through agreement or with a court order. 

If the child is very young, the Court generally assumes that the child would be better off with his or her mother unless it can be proven otherwise. 

However, all cases in the family court are decided individually and just because a father does not have parental responsibility already, does not mean he cannot be granted a residence order.

How will the Court come to their final decision?

The Court uses something called ‘paramountcy’. Paramountcy relates to the importance of the care of the child, where they should live and also what is in their best interests. For example, if the Court feels that the child should remain living with the mother as it is in the child’s best interest, then the Court is obliged to issue in her favour. 

The Court will always look at what is best for the child before anything else. This can often become a separate issue between the parents if their relationship is not amicable. If your child is of the age where they understand why this is happening, you should speak to them, preferably with the other parent if this is possible and explain why you are thinking about applying for a residence order.

Takeaway

The decision to obtain a residence order for your child is a big one. 

The residence order  (sole custody) will determine where your child will live. It can help to stabilise your child’s condition, and the Court will seek to do so when the Court is not sure where your child should live.

The Court can also make a Shared Residence Order, setting out how a child divides time between 2 households. The time spent does not have to be equal between both parents for a Shared Residence Order to be made.

Children’s laws can be very complicated, so it is best to seek legal advice from a family lawyer before making any decisions.