Info & Advice

Can my ex-partner take my child to live with them when we separate?

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There are many steps a parent can take when exercising their rights and responsibilities towards their child. This is also known as exercising their parental responsibility (PR).

What about when the relationship breaks down?

When parents of a child separate, there inevitably arises the question of with whom the child will reside.

Sometimes there is very clearly one parent who has been caring for the child whilst the other parent may be working outside of the home. More often than not the parent undertaking the childcare is the child’s mother. The parties might in this instance agree that these child should reside with their mother post relationship breakdown.

There may however be a scenario where both parents have been sharing the responsibility caring for the children. The parties are very likely not going to agree that the children should live with the other parent and not them.

Consideration would also need to be given to the level of time the child will spend with the parent with whom they do not live.

Can the child’s parents come to an informal arrangement?

In an ideal world the parties involved in a relationship breakdown would discuss future child arrangements and come to a resolution themselves. This becomes a more unlikely outcome when we consider how emotional and acrimonious family breakdowns can be.

The breakdown of the relationship might have involved infidelity, domestic abuse, or alcohol / substance abuse issues and this will have resulted in a great deal of mistrust and contention between the parties. Parties can therefore become more polarised in their positions and it makes direct negotiations very difficult.

If these arrangements cannot be agreed upon, it will be necessary to apply to the court for orders deciding these issues.

How can the court assist?

Child arrangements orders (‘CAO’) regulate with whom a child is to live and / spend time or otherwise have contact with a person.

If separated parents cannot agree on where their child will live there will need to be an application made to court seeking a CAO regulating the child’s living arrangements.

Additionally, if the parents agree that the child will live with one parent but they cannot agree the time the child will spend with the other parent then there will still need to be an application to court seeking a CAO regulating the contact arrangement. This would require the person with whom the child lives to facilitate the child’s contact with the other parent in line with the detail included in the CAO.

Are the other types of CAO the court can make?

Yes. The court can make a CAO regulating a child’s living arrangements by naming two people as the persons with whom the child is to live. This is also known as a shared care arrangement.

The persons named need not live in the same home. The CAO would dictate the specifics of the arrangements for when the child will be with each person named including details around drop offs and / handovers. The child might spend equal time with each parent or it might be an unequal division based on one parent being deemed unable to care for the child half of the time.

Are there benefits of having an order detailing that my child lives with me?

Yes – you can take the child abroad for up to one month at a time without the consent of the other parent or the court’s permission. Remember though – you would still usually need to notify the other parents of your travel plans including flight and accommodation details.

If you do not have an order detailing that you are the parent with whom the child lives then you would need to seek the agreement of the other parent to travel. If the other parent does not agree then you could apply to the court for a ‘specific issue order’ allowing you to take the child abroad.

What if we cannot agree on the contact arrangements?

If you cannot agree on when your child should spend time with the other parent, then you will need to apply to the court for an order resolving the contact arrangements.

The court can make an order that the child has ‘direct contact’ with a parent meaning that the child spends physical time with that parent.

The court might instead make an order that the child only has ‘indirect contact’ with a parent. This might be because there are untested allegations of harm, other potential associated risks to the child, or a history of domestic violence in the home. Indirect contact can take place via letters, emails, VC, or telephone calls or messages.

The court can also make orders that the child spends overnight contact with a person. This will happen with the child is an appropriate age. If the order concerns a baby or young child then the court will be more likely to make an order for a period of hours that the child will spend with the parent.

In circumstances where the child might not have spent a lot of time with the parent who is seeking contact then the contact arrangements can be phased. There could be a period of indirect contact first if appropriate in order that the relationship between the parent and child can be built up over time.

If there are live issues of domestic abuse or any posed risk to the child through contact arrangements then the court can make an order that the contact be supervised. The supervision is usually undertaken by a third party – a family member, friend or even a professional at a contact centre if deemed appropriate. Staff at a centre can supervise or support the contact with the aim of ensuring the child remains safe.

Does the child’s age matter?

A child arrangements order (‘CAO’) regulating contact can continue only until the child is 16 years old (or 18 years old in exceptional circumstances). The detail of the order can include the duration of the order made.

A child arrangements order regulating with whom a child lives continues until the child is 18 years old.

Who can apply for a CAO?

  • Child’s parent
  • Child’s guardian / special guardian
  • Child’s step-parent
  • Any person with PR for the child under a PR agreement or order
  • Any person with whom the child is named as living with under a CAO
  • Any person in a marriage or civil partnership in relation to whom the child has been treated as a child of the family
  • Any person who the child has lived with for 3 years ending no later than 3 months before the application is made (need not be continuous 3 year period)
  • Any person who has the consent of each person named in a CAO that is in force as the person with whom the child is to live
  • Any person who has the consent of the local authority where the child is in local authority care
  • Any person who has the consent of each person with PR for the child
  • A local authority foster parent with whom the child lives for one year immediately before the application is made
  • A child’s relative who has had the child living with them for one year immediately before the application is made

In the event a person wishes to apply but does not fall into any of the above categories they can still apply but must seek the court’s permission to do so.

Is it better to try to resolve these matters with my ex-partner directly?

Where possible and safe to do so, the court expects separated parents to try to resolve disagreements about child arrangements outside of the court system and to be flexible about changes to agreed child arrangements.

Is there anything we need to consider before going to court?

Yes – before making your application to court you will need to attend a mediation information and assessment meeting (‘MIAM’). If you are the applicant you will also need to invite your ex-partner to attend (in absence of an exemption).

During the MIAM a mediator will provide information on mediation and other forms of dispute resolution and discuss with both parties the options going forward including pricing for mediation if that is something that you both wish to explore.

If your ex-partner does not attend for the MIAM the mediator can still provide to you the requisite form signed to allow you to apply to court for a CAO.

Mediation is not always a suitable form of dispute resolution. For example, if there are allegations or findings of domestic abuse.

How can help?

Resolving child arrangements post separation can feel very stressful and overwhelming, especially when you cannot agree matters with your ex-partner. Please contact us to request your free consultation with a specialist family law solicitor who can discuss your options and the way forward.

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