What happens to child living arrangements after a divorce?
One of the most emotionally challenging aspects of divorce is deciding on the living arrangements of any children from the marriage.
There are many different options available which will depend on the specific circumstances.
We will consider some of the common child living arrangements below and how to make a shared parenting agreement.
Do children always live with the mother?
Although social norms and traditions have changed quite drastically over the past few decades and fathers are far more involved in raising their children than in the past, it is still often the case that when parents get divorced the children end up living with their mother – especially when there are young children involved.
But it is becoming increasingly common for children to live with their father instead, and shared child living arrangements are also gaining in popularity.
What are my options?
Parents have total flexibility in deciding on child living arrangements, as long as these do not negatively impact upon the children (eg by interfering with their schooling etc). Some common choices include:
Sole residency – the children will normally live primarily with one parent (usually the mother). In this scenario, the other parent will often get to see their children at regular intervals, such as every other weekend.
This option provides children with more stability but the non-resident parent may feel left out.
Joint residency – the children will be considered to be resident with both their parents, with their time spent in two separate homes (eg one week with their mother followed by one week with their father etc).
Although this may not amount to a 50:50 split of their time, this is perhaps the most equitable way of sharing parental responsibilities. However, the constant shuttling of children between two separate households can lead to feelings of instability.
Bird’s nest arrangement – a relatively new style of child living arrangement, this is where the children stay in one home and the parents move in and out according to an agreed schedule.
For example, the mother will live in the family home with the children one week, then she will go to her own flat and the father will move in for a week.
This arguably creates more stability for children compared to joint residency, but the parents may need a separate home each, which will often simply be unaffordable.
In practice, arrangements may well need to change as children grow up and form their own preferences for where they live. Also, a degree of flexibility is often necessary to take account of school holidays and various events and new commitments.
Once an agreement has been reached, it’s a good idea to write this down in the form of a shared parenting agreement (see below).
What is a shared parenting agreement?
A shared parenting agreement is a written document which contains details of the child living arrangements which have been agreed between the parents. It can include:
- Where children will live and for how much of the time (eg sole residence, joint residency etc)
- Contact arrangements – this will be particularly important if children are living primarily with one parent
- Financial support in respect of children
A shared parenting agreement is not automatically legally binding, but it can be made legally binding if drafted into a consent order.
If we can’t agree, can the court help with child living arrangements?
In general, parents are discouraged from taking child arrangement issues to court. Family law courts will encourage parents to come up with their own agreement unless it is clearly necessary for a court to intervene.
Mediation and other alternative dispute resolution methods should normally be considered if the parents cannot reach an agreement between themselves, before going to court.
Ultimately, if parents reach deadlock, a court can decide on child living arrangements by making a child arrangement order.
But there is a requirement to attend a Mediation Information Assessment Meeting (MIAM) before taking a matter about child living arrangements to court. A MIAM is attended by a qualified mediator and allows the parents to consider mediation options.
NB: There are exceptions to the requirement of attending a MIAM (eg in cases of domestic abuse etc).
What does the law say in regards to child living arrangements?
If a case ends up in court, some of the issues which will be considered by the family law judge include:
- Wishes and feelings of the children
- How to minimise disruption to childrens’ lives
- Quality of the conditions of each parental home
- Whether schooling will be affected (eg will children need to move schools?)
Can my spouse stop me from seeing my children?
Unless there is a court order prohibiting either parent from seeing their children, the other parent cannot stop their spouse (or ex spouse) from seeing their children.
Conversely, there is no automatic legal right for a parent to see their children. If one parent is trying to stop the other parent from seeing their children, it is advisable to speak to a family law solicitor.