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Could a Child Choose Which Parent to Live With?

By: Lorna Elliott LLB (hons), Barrister - Updated: 13 May 2017 |
 
Child Residence Order Parent Court

Q.

I hope you can help. My sister left the father of her children a couple of years ago and married another man. Her oldest child, my niece, is having an awful time as her step father will not accept her and seems to want to do nothing but make her life a misery and it is ruining her self confidence.

She would rather live with her father and although my sister, her mum, got residency, I don't think she would object to her living with him. I wondered whether she had any say now she is 15? If not, what happens when she is 16? Can she choose to live with her father even if her mum says no? I hope you answer this so I can try and help a very unhappy child.

(H.W, 10 March 2009)

A.

This is a very sad situation, although there is light at the end of the tunnel. You have stated that your sister got residency so I presume that there was a Residence Order put in place when your sister separated from the father of this child. Just in case, I have also outlined the situation if there was no such residence order.

Residence Orders – If Everyone Agrees

If this is the case, then a residence order should be adhered to, although if everyone involved consents to your niece going to live with her father, there may be no need to go back to court. Your niece can simply live with her father with everyone’s blessing by way of an informal arrangement.

Residence Orders – If Everyone Does Not Agree

If your sister decides that she’s not happy for your niece to live with her father, it may be that the matter should be referred back to the family courts in order to have the residence order amended. In such a situation (when the parents cannot agree) it is important to return to court, because if one party merely acts without the consent of the other party and without court intervention, not only could the other party threaten legal action but they would also be in contempt of court.

If your niece’s biological father applies for a residence order, he will have parental responsibility until your niece reaches 18 (it’s only 16 if the mother has parental responsibility). When your niece reaches 16, she will be able to decide where she lives in any event.

No Residence Order

If there is no residence order in place in terms of your niece, there should not be a problem. If both your sister and your niece’s father agree about where your niece should live, she can simply go and stay there. If your sister is not happy about your niece living with her father, her father can go to court to apply for a residence order. If such an order is granted, it will automatically give him parental responsibility.

Timing

Given that your niece is already 15 years old, it’s important to bear in mind that the process of obtaining a residence order can take between six months and a year. Your niece can also apply for a residence order herself, but will have to ask permission from the court (called ‘leave’) to do so.

The Court’s Decision

In deciding whether or not to grant a residence order the court always considers the welfare of the child first. They will also look at your niece’s specific needs: physical, emotional and educational, as well as her age, background and the effect the change in circumstances will have. Also, they will look at how capable her father is of looking after her, and very importantly any harm the child has suffered, or may suffer in the future.

I hope this helps you to understand the situation better as regards your niece, and I hope it is something that can be resolved to everyone's satisfaction as soon as possible.

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Hello, i was wondering if you could give me some advice... my son is 15 this year and has been living with his dad since he was 3 due to me being ill when he was little, i have him every other weekend and holidays, i went to court to give his dad PR as we wernt married but it had to be an order as i had no photo ID to do the agreement, my son is now saying he wants to come back home as hes getting threatned by his dads wife that if my son dont change his attitude it will make his dad and wife spilt up... my son has packed a bag incase she starts with again and hes told me he will walk out and come to my house, where he will be made welcome... can he chose where he wants to be due to his age? Any advice would be great thankyou
paddysmum85 - 13-May-17 @ 2:54 PM
Biwo- Your Question:
Hi, my sisters went into foster care 6 years ago for 2 weeks,my mum decided it was for the best that they're dad looked after them until she was better,it was a decision between the both of them there were no court order or anything,my little sisters now are wanting to come and live back with my mum. would they be able too?

Our Response:
Why not discuss it with the dad? Perhaps a shared arrangement could be made? If there was no court order and the children were not actually take out of your mum's care for safety reasons, there's no reason why they can't come to some arrangement amicably.
LawAndParents - 26-Apr-17 @ 12:29 PM
Hi, my sisters went into foster care 6 years ago for 2 weeks,my mum decided it was for the best that they're dad looked after them until she was better,it was a decision between the both of them there were no court order or anything,my little sisters now are wanting to come and live back with my mum.. would they be able too?
Biwo - 25-Apr-17 @ 8:52 AM
Shirl - Your Question:
My sister has had my daughter by a court order as I have had a long history with drugs ive changed what can I do to get her back in my care as my sister is making it very hard for me to see her she has recently been placed on child pertection due to demotic vilonce on my sister is this my time to step up and if so where do I start

Our Response:
Try the Family Lives helpline on 0808 800 2222
LawAndParents - 6-Apr-17 @ 12:12 PM
My sister has had my daughter by a court order as i have had a long history with drugs ive changed what can i do to get her back in my care as my sister is making it very hard for me to see her she has recently been placed on child pertection due to demotic vilonce on my sister is this my time to step up and if so where do i start
Shirl - 5-Apr-17 @ 5:13 AM
Post by Friend I am in the exact same position as you. Our son is being emotionally abused by his father. He tells Him all sorts of lies as to why he can't see or stay with his mom. We have no residency order in place. If you get any replies, please let me know, thank you
Marianna - 20-Mar-17 @ 12:57 PM
Goggsy- Your Question:
My son is 15and gone into foster care till he's 16 then going in a home there is a lady who wants to take him in who I don't know and don't trust she has been checked by the social and they say it's fine I do not want him living there is there anything I can do to stop it

Our Response:
If he has to go into foster care, social services will generally decide which one, so unless you're willing to have him at home as an alternative it's unlikely you will be able to do anything.
LawAndParents - 15-Mar-17 @ 12:00 PM
My son is 15and gone into foster care till he's 16 then going in a home there is a lady who wants to take him in who I don't know and don't trust she has been checked by the social and they say it's fine I do not want him living there is there anything I can do to stop it
Goggsy - 13-Mar-17 @ 11:11 AM
Hi I need advice my 2 younger children have been staying with their dad during the week as over year ago I had an emotional breakdownso I asked him if he could take them for a few days whilst I pulled myself together. However he had no intentionof letting them come home he uses the excuse that I work at night 2 days a week. He uses my mental health against me. There is no court order to say that they should not be with me. He is a mental abuser. The children are desperate to come home permanently but he will not allow them. I have them every weekend whilst he goes away. They are both suffering mentally and physically I don't know how to fix this he blackmails me all the time constantly trying to undermine me as their mum. I am at a loss what to do he has the money and the power to do what he wants.
Friend - 4-Mar-17 @ 1:26 PM
Scottie- Your Question:
My sister's is going through divorce and to cut a long story short her husband is a master manipulater and mental abuser.she brought them up single handed for 11 years in that time he only saw them for an hour each day or weekends if my sister needed to go ie to funeral or wedding.they are twins and one is slightly autistic but won't leave his brother who is a controlling child like his father.He adores his dad who favours him over the other child also the other child has been verbally and mentally abused by his dad and brother. My sister has had the children removed from her care as the father has got his fav son to tell lied about his mum going to commit suicide.The social services have dealt with this in an appalling way and although she got an apology from the family court and the judge has told the father and social services to rectify it they are still acting as if she has abused them and even telling lies at school. She doesn't know who to turn to as everything she does or says is twisted and she has even been accused of trying to abduct them The family gp has even went to core meeting to tell them that she knows she was an excellent mum and that the things said are untrue ie she's an alcoholic and mentally disturbed.May I also add that this doctor also knows this man for what he is and he now is saying that the dr is upsetting the child with autism by attending the core meetings as he is a stranger (which is a lie ) it's a tragic story but my sister needs this sorted as she is now homeless and childless and social worker is on husbands side who has a new partner who had her children removed from her care because she abused them which is worrying my sister as social worker's are just letting this happen.when she writes to them they say they have to give letters to dad to read first then they burn them.he has so much power it's scary.PLEASE HELP If possible we are devastated as their older half brothers and all our family are not allowed contact and he is very biggotted against the Irish which is now coming out in the boys

Our Response:
Unfortunately, there is not much we can do to assist here, we can only offer people advice about how the systems work etc. You might be able to get some personal/individual advice from the Family lives helpline
LawAndParents - 22-Feb-17 @ 11:10 AM
My sister's is going through divorce and to cut a long story short her husband is a master manipulater and mental abuser .she brought them up single handed for 11 years in that time he only saw them for an hour each day or weekends if my sister needed to go ie to funeral or wedding .they are twins and one is slightly autistic but won't leave his brother who is a controlling child like his father .He adores his dad who favours him over the other child also the other child has been verbally and mentally abused by his dad and brother. My sister has had the children removed from her care as the father has got his fav son to tell lied about his mum going to commit suicide.The social services have dealt with this in an appalling way and although she got an apology from the family court and the judge has told the father and social services to rectify it they are still acting as if she has abused them and even telling lies at school. She doesn't know who to turn to as everything she does or says is twisted and she has even been accused of trying to abduct them The family gp has even went to core meeting to tell them that she knows she was an excellent mum and that the things said are untrue ie she's an alcoholic and mentally disturbed.May I also add that this doctor also knows this man for what he is and he now is saying that the dr is upsetting the child with autism by attending the core meetings as he is a stranger(which is a lie ) it's a tragic story but my sister needs this sorted as she is now homeless and childless and social worker is on husbands side who has a new partner who had her children removed from her care because she abused them which is worrying my sister as social worker's are just letting this happen .when she writes to them they say they have to give letters to dad to read first then they burn them .he has so much power it's scary .PLEASE HELP If possible we are devastated as their older half brothers and all our family are not allowed contact and he is very biggotted against the Irish which is now coming out in the boys
Scottie - 19-Feb-17 @ 2:29 AM
Laura - Your Question:
My child have residency at their dads the boys want to come home and he is happy for them to do I need to apply to the courts to get the residency evoked or if he agrees how can we do this so they come home outside the courts

Our Response:
If there is no court order in place at the moment, you can simply agree between you. If an order is in place already, then it should be fairly simple to get it removed if you're both in agreement on the circumstances.
LawAndParents - 16-Feb-17 @ 12:29 PM
My child have residency at their dads the boys want to come home and he is happy for them to do I need to apply to the courts to get the residency evoked or if he agrees how can we do this so they come home outside the courts
Laura - 15-Feb-17 @ 9:12 PM
Hi I'm 15 years old and I'm really unhappy at home, I don't get abused or anything but just constantly arguing with my mum all the time and she is mentally abusing me if you want to put it that way. I feel too scared to ask her too move to my dads because she would just shout at me and make my life even more stressful than it is and make me feel bad but I would love to live with my dad so much me and my dad are so close we have a good relationship and get along well, shall I ask my mum too move in with him it's easy access too my school and it far from my home I'm living in now. I would still see her just not live with her.. I don't know what to do incase it all goes wrong and my relation ship with my mum just goes from bad too worse. Any advice?
Jess - 8-Feb-17 @ 11:40 PM
Hdjd - Your Question:
I want to live with my dad but my mum won't let me. I'm 13. I always dread going home. Not that she abuses me but I just don't want to live with her. The court did not place an order on whom I live with. What do I do to live with my father.

Our Response:
If your mother disagrees with you living with your father, he will need to apply to the courts for a residency order. Bear in mind that the courts may expect your parents to try mediation on order to reach an agreement before court action. As you are 13, the courts will take your opinion into consideration along with other factors.
LawAndParents - 16-Jan-17 @ 12:26 PM
I want to live with my dad but my mum won't let me. I'm 13. I always dread going home. Not that she abuses me but I just don't want to live with her. The court did not place an order on whom I live with. What do I do to live with my father.
Hdjd - 15-Jan-17 @ 4:37 PM
My ex wife has residency of our 14 year old daughter. My daughter is in constant conflict with her mother and wishes to live with me. She is very intelligent and well able to speak for herself giving clear reasons why she wishes to live with me. She is soon to spend her allocated holiday time with me and has said she will refuse to return to her mother. I am fully prepared to support and help her. In urgency and anticipation of her remaining with me am I able to get an urgent court order for a change of residency? If she refuses to physically go back what can be done? I can't force her and wouldn't anyway. I have no communications with my ex and know that it would be a total waste of time to try.
Michaels - 7-Dec-16 @ 8:36 PM
Hi my son is 8 and he was placed with his father on a care order recently. He is distraught and is threatening to self harm - the social worker assigned to his case has done nothing to reiterate his concerns and has disguised his concerns as "emotional harm from mother" despite my child raising concerns to me in front of her about his father stealing and selling "white stuff" - My son told me he seen texts between his social worker and his father and that they were "together" and also that they were "making a plan to trick you mummy" he is 8 and a very bright bunny. What can I do as I have been stopped from seeing him because he always tells me he wants to come home. This is parental alienation what can I do?
Mumof2boys - 4-Dec-16 @ 2:19 AM
The court gave my mom custody of my two youngest boys, 16 &12,my twelve year old wrote this letter to my attorney yesterday before he went back to her after spending two nights with me. It says: Mr Wilson, I am twelve years old and want to live with my mom Michelle. Please send me a text message if you can help me my phone# is and then signed his name. My heart broke. Can he decide this for us? They were takin because of marijuana use.
tinker - 27-Nov-16 @ 8:21 PM
I have a 13 year old daughter who is supposed to be going back with her dad as he has the child arrangement order but she doesn't want to, what can I do?? What can he do??
Tina - 27-Nov-16 @ 11:54 AM
Coz- Your Question:
Hi my partner got custody of his 2 girls almost 2 year ago ( residency order) now the girls age 6 and 9 want to go back to their mum social services were involved hence why my partner got custody, could he just let them go back to her or does he have to get social services back involved. Their mum seems to have changed her ways and is in a much bettet position than she was before so we dont see a problem letting them go back if its what the want

Our Response:
We suggest you contact social services so they can keep an eye on the girls if this goes ahead.
LawAndParents - 16-Nov-16 @ 12:29 PM
Hi my partner got custody of his 2 girls almost 2 year ago ( residency order) now the girls age 6 and 9 want to go back to their mum social services were involved hence why my partner got custody, could he just let them go back to her or does he have to get social services back involved. Their mum seems to have changed her ways and is in a much bettet position than she was before so we dont see a problem letting them go back if its what the want
Coz - 15-Nov-16 @ 6:49 PM
Bmac - Your Question:
I have been separated from my ex partner since 2011 and have 3 kids age 8 10 and 13 my ex seems to be very bitter and uses the kids to get at me and keeps stopping and starting contact with my kids which is heartbreaking or myself and my kids whom ime very close to, ive been to mediation ( my ex partner refused to attend) is my next step to go to the family court for access. My eldest tries to contact me but gets threatened by her mother to take her pho of her if she sees any texts pho calls etc to me on her phone. Ime at my wits end missing my kids so much. Ime a heartbroken dad missing my kids so much it hurts.

Our Response:
Yes, your next step is the courts if you've already tried mediation. The courts will decide based on the best interests of the children. If they can, they will take the views of the children into account.
LawAndParents - 11-Nov-16 @ 11:31 AM
I have been separated from my ex partner since 2011 and have 3 kids age 8 10 and 13 my ex seems to be very bitter and uses the kids to get at me and keeps stopping and starting contact with my kids which is heartbreaking or myself and my kids whom ime very close to, ive been to mediation ( my ex partner refused to attend) is my next step to go to the family court for access. My eldest tries to contact me but gets threatened by her mother to take her pho of her if she sees any texts pho calls etc to me on her phone. Ime at my wits end missing my kids so much. Ime a heartbroken dad missing my kids so much it hurts.
Bmac - 10-Nov-16 @ 11:54 AM
Caz - Your Question:
Hi my step daughter is 11 she hasn't seen her dad for 3 years because her mum won't let her because I am in his life the little girl has recently been texting my husband asking to come and live with us his ex partner won't answer texts or even answer the phone which is sad as its the little girl wants to have contact there is no court order for her and he is in the birth certificate we just don't know where to go from here or what his rights are

Our Response:
His daughter has a right to contact with her father if she wants it. If the mother is not allowing this and will not agree to reinstating contact, then your partner will have to apply for a court order for contact. The courts may insist that the parents attend mediation first to try and come to some sort of agreement without the court's involvement. Any agreement made at mediation can in fact be made legally enforeceable by the courts as well. If mediation is unsuccessful a court order will be necessary.
LawAndParents - 8-Nov-16 @ 10:48 AM
Hi my step daughter is 11 she hasn't seen her dad for 3 years because her mum won't let her because I am in his life the little girl has recently been texting my husband asking to come and live with us his ex partner won't answer texts or even answer the phone which is sad as its the little girl wants to have contact there is no court order for her and he is in the birth certificate we just don't know where to go from here or what his rights are
Caz - 6-Nov-16 @ 12:05 PM
Nev - Your Question:
Hi my daughter is 12 and lives with her mum my ex wife but she would rather live with me her dad and when ever she mentions about wanting to live with me her mum uses emotional blackmail to make her stay.

Our Response:
Take a look at the response to @Sy below, as the answer would be very similar.
LawAndParents - 8-Sep-16 @ 2:43 PM
Sy - Your Question:
Hi my son is 8 and has told both me and his mother he wants to come and live with me and my partner I have mentioned to my ex wife about us sitting down to discuss this and now she is refusing any contact with him we have joint parental rights where do I stand on access and how would legally be able to bring him to live with me

Our Response:
First you should try and persuade your ex to attend formal mediation (the courts would usually require you to do this before a court order). If not, then you will need to apply for a court order for full residence (form C100). The courts will decide what is in the best interests of yor son, whose opinion may or may not be taken into consideration (it's usually age 11 upwards before a child'd view is asked for).
LawAndParents - 8-Sep-16 @ 9:57 AM
Hi my daughter is 12 and lives with her mum my ex wife but she would rather live with me her dad and when ever she mentions about wanting to live with me her mum uses emotional blackmail to make her stay .
Nev - 7-Sep-16 @ 6:19 PM
Hi my son is 8 and has told both me and his mother he wants to come and live with me and my partner I have mentioned to my ex wife about us sitting down to discuss this and now she is refusing any contact with him we have joint parental rights where do I stand on access and how would legally be able to bring him to live with me
Sy - 7-Sep-16 @ 12:48 AM
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