​Who do the kids live with if we separate?

Making the decision to separate can seem overwhelming, especially when you have to consider your children. If you’re struggling to plan their living arrangements, there are options to help you come to a resolution. Gabbie Clasper, Head of Family Law explains…

Family mediation

Family mediation is an ‘out of Court’ settlement process.  It is often felt to be a more sensitive method in resolving child arrangements following separation than going to a Court.  It should be attempted (unless there is an emergency situation or domestic abuse) before any Court application is made.

In mediation, with support, together, you will decide the outcome, rather than passing the decision making to a Judge. The process should enable helpful communication and resolve matters more quickly.

Going to court

If you feel it necessary, there is the court system, where an application can be made for the help of the Judge in determining what should happen.

What will help the judge make a decision?

Section 11 of the Child and Families Act 2014 introduced a presumption that, unless the contrary is shown, the involvement of both parents in the child's life will further a child’s welfare.  In real terms, this means if there is a dispute, you start off with the assumption that your child should spend time with each of you.

A Judge, when asked to make decisions about arrangements for a child, must apply the Welfare Checklist (Children Act 1989).  This includes the age of the child, their wishes and feelings, emotional and physical needs, the effect of change and whether they are at any risk of harm.

Essentially, the law relating to children is ‘child focused’, meaning the child is central to the Judge’s thoughts when making decisions. Considering: how far do the parents live apart? Who has been involved in the daily arrangements for that child’s care, for example, nursery, grandparents, school and in practical terms, who is able to care for that child?

Unless there are issues such as those relating to harm, or a new significant travel distance to consider, what has gone on prior to separation is likely deemed the best indicator of what should continue in future arrangements. Looking first at what previously happened, the Judge then adjusts this accordingly, so, for example, you both have time with the child/ren at weekends and can drop off and collect at school to play a role in their education.

Emsleys’ award-winning family department assists with negotiating parenting plans and any Court proceedings. We also have referral systems with experienced family mediators who can offer guidance to couples.

​Who do the kids live with if we separate? Blog from Head of Family Law, Gabbie Clasper
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