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Could a Child Choose Which Parent to Live With?

By: Lorna Elliott LLB (hons), Barrister - Updated: 20 Aug 2018 |
 
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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My 12 year old son desperately wants to live with me and hates his mum. There is no court order at all but his Mum doesn’t want him to go. What can we do? He has even just mentioned suicide and we feel helpless
Smith - 18-Jul-18 @ 7:20 PM
Hi, My daughter moved in with me recently who is now 12 due to several years of difficulty living with her mum. She clearly doesn’t want to move back but still sees her mother every weekend. She has even spoken to social services recently on her own and expressed she is much happier with me. I’m not stopping contact at all and she is welcome to see her anytime but her mother never makes that effort and does not speak to her daughter at all during the week. In fact it was myself that had to encourage my daughter to see her mum at all so I’m responsible taking her to and from her mothers house. The lady from social services said due to her age she was able “to talk with her feet” but I’m curious if there is anything I should look into legally? Any advice would be greatly appreciated Thanks Si
Si - 15-Jul-18 @ 8:02 PM
Clurking - Your Question:
Hi my children are living with there dad, through me going through a break down 7 years ago. It was decided through social services that they stay w there dad until I sorted myself out. He hasn't got a residency order it never went through courts. I did try for share care but never went anywhere as the children's dad said they were happy where they are. I see my children every weekend and Monday, I have them one night one weekend then next weekend I have them two nights. My 9yr old is asking to live with me now. What are my rights in this. I'm a little scared of stirring things up which isn't my intention, I just don't like seeing my 9 year old upset. I have asked my 14 year old what would he like and he says he is happy as things are.

Our Response:
Speak to the father first of all if you can. He may be willing to discuss this with your son and you might be able to come to an arrangement. If not, you could try mediation, after that (if it's unsuccessful) you might consider going to court for a child arrangements order.
LawAndParents - 12-Jun-18 @ 2:58 PM
Hi my children are living with there dad, through me going through a break down 7 years ago. It was decided through social services that they stay w there dad until I sorted myself out.He hasn't got a residency order it never went through courts. I did try for share care but never went anywhere as the children's dad said they were happy where they are. I see my children every weekend and Monday, I have them one night one weekend then next weekend I have them two nights. My 9yr old is asking to live with me now. What are my rights in this.I'm a little scared of stirring things up which isn't my intention, I just don't like seeing my 9 year old upset. I have asked my 14 year old what would he like and he says he is happy as things are.
Clurking - 11-Jun-18 @ 9:28 AM
Hi there, can you please advise, I’m going through divorce, our house is in dispute with court, husband won’t accept me getting 75/25 in my favour as we have a 12 year old child, we also have 3 adult sons... I’m now in refuge with the 12 year old son, his dad & brothers are always persuading him to go live with them, 12 year old is getting upset saying he wants to live with them... it’s clearly his game as not to sell house, if the young son does live with them, where do I stand?, I have left an abusive home from husband & sons, now they’re being so nice to the younger son, and younger son now wants to live with them. 3 bedroom house , 1 minor child, what’s going to happen if young child does go live with them?, sorry for long note, I’m stressed and upset , I can’t believe they drove me out of the house, & trying to get young son back just so I won’t get my divorce settlement, thanks in advance
Ayse - 11-Jun-18 @ 12:08 AM
Hurting - Your Question:
My sons went to live with there dad in 2015 as they haven't seen him for a long time and still living him but now my eldest son have seen his true colors drinking all the time haveing to take his younger brother to school who is 8and he is 11 we live 2hours apart and now my eldest son wants to come back with me this have never gone to court just a friendly agreement between myself and my ex partner so if my son is saying he wants to come home with me by law do I have rights

Our Response:
Yes you and the father can agree child arrangements between you if there is no court order in place.
LawAndParents - 25-Apr-18 @ 11:08 AM
My sons went to live with there dad in 2015 as they haven't seen him for a long time and still living him but now my eldest son have seen his true colors drinking all the time haveing to take his younger brother to school who is 8and he is 11 we live 2hours apart and now my eldest son wants to come back with me this have never gone to court just a friendly agreement between myself and my ex partner so if my son is saying he wants to come home with me by law do I have rights
Hurting - 24-Apr-18 @ 3:23 AM
7 years ago my nieces and nephew were removed from the care of my sister and are now living with their dad my niece is nearly 14 and things haven't been going good at home and she asked to come and live with me her auntie I don't have contact with her father I have tryed on the past but it's a touchy subject my niece is currently staying with her nanny short term burn long term she said Shen can't have her what can I do ??
Elle - 15-Apr-18 @ 9:49 AM
Daz - Your Question:
My 12 year old son who has Aspergers lives with his mother (there is no court order in place) my son has told his mum he wants to live with me and her reply was 'I can't afford for you to live with him' she would no longer receive maintenance and disability living allowance.He is not happy at the school she has sent him to, he knows the schools where I live are of a much higher standard especially for children with autism/aspergers. He is a very sensitive boy and all the upsets are not helping him.

Our Response:
If you can't agree to this with the mother you may have to consider mediation - then court for a child arrangements/residency order. The courts make their decisons on the best interests of the child, not the financial impact on the mother.
LawAndParents - 11-Apr-18 @ 11:03 AM
My 12 year old son who has Aspergers lives with his mother (there is no court order in place) my son has told his mum he wants to live with me and her reply was 'I can't afford for you to live with him' she would no longer receive maintenance and disability living allowance. He is not happy at the school she has sent him to, he knows the schools where I live are of a much higher standard especially for children with autism/aspergers. He is a very sensitive boy and all the upsets are not helping him.
Daz - 8-Apr-18 @ 9:04 PM
A - Your Question:
I have a contact court order as primary carer for my daughter who is 14. She sees her dad once a fortnight from Friday night until Sunday return 7pm. This has been in place since 2008. My daughter and I had an argument where she has left the house and gone to live with her dad and is refusing to communicate with me. My ex husband has contacted a solicitor and sent me several messages that she does not wish to live with me any more. She has been gone for 6 weeks but texted my partner to say she misses me and has sent me a mother’s day card. I have asked her father to go back to court to amend the contact court order if she wishes to reside with him. Please can you advise of my rights Kind regards

Our Response:
If you're both happy with the new arrangements you can probably have any exisiting child arrangements order adjusted quite easily.
LawAndParents - 27-Mar-18 @ 12:49 PM
I have a contact court order as primary carer for my daughter who is 14 . She sees her dad once a fortnight from Friday night until Sunday return 7pm . This has been in place since 2008. My daughter and I had an argument where she has left the house and gone to live with her dad and is refusing to communicate with me. My ex husband has contacted a solicitor and sent me several messages that she does not wish to live with me any more. She has been gone for 6 weeks but texted my partner to say she misses me and has sent me a mother’s day card. I have asked her father to go back to court to amend the contact court order if she wishes to reside with him. Please can you advise of my rights Kind regards
A - 25-Mar-18 @ 6:12 AM
Tracey - Your Question:
Hi my children went to live with there dad as my eldest was getting bullied at school. And we said if they did not settle they were to come back home but they have not settled and father refusing to allow them back home. No court order. Boys are 11 and 13. He has stopped all my contacts for no reason. My 11 year old managed to contact me last night and say there dad has gone away with the navy at sea and have left them with his girlfriend who have no parental rights and they a want to come home. Can I go get them and bring them home without police ect

Our Response:
Have you tried to contact the father? Assuming you have parental responsibility and there is no safety reason why contact has stopped, then as the father is away and the children want to go home we don't think you're breaking any laws in going to collect them. It's probably worth a chat with the police or a legal professional first.
LawAndParents - 14-Mar-18 @ 1:54 PM
Hi my children went to live with there dad as my eldest was getting bullied at school. And we said if they did not settle they were to come back home but they have not settled and father refusing to allow them back home. No court order. Boys are 11 and 13. He has stopped all my contacts for no reason.My 11 year old managed to contact me last night and say there dad has gone away with the navy at sea and have left them with his girlfriend who have no parental rights and they a want to come home. Can I go get them and bring them home without police ect
Tracey - 12-Mar-18 @ 10:22 AM
I need advise my 12 year old daughter is unhappy where she is there is a residency order in place she wants to come me live with me but the parents are saying it's not happening she is acused ofstuff that isn't her daily spoken down to things taken away from her she won't speak to no one they have taken her out of school and apparently home schooling her left in the house by her self and belittled front of groups of other family members she continuesly runs away and misbehaved now the other thing is she lives in England I live in Scotland and the is some slight differences in family law a lawyer here says she can make her mind up at age 12 some saying 16 others are saying the residency order is until 18 so she has to stay till then it's seriously damaging her it's destroying her inside she ain't the perky smiling young lady she once was just an empty shell please anyadvise welcomed
Dad87 - 11-Mar-18 @ 9:00 PM
2 off my son's and daughter live with there mother but since Xmas my daught has stayed with me she told her mother she wants to live with me But her mum is putting pressure on her to stay with her by offering her gifts and faults promises.also my other son as said he wants to live with me and she is doing the same to him yesterday she offers him a new iPhone if he stays with her the kids are always at mine the cum from school to mine the sleep at least 3 /4 nights a week am on benifts and so is she but my son get pip which she uses to go away every 6 weeks while I ave the kids
Whippy - 10-Mar-18 @ 11:56 AM
Hi my grandson has lived with me for almost 3 yrs his mum didnt provide anythg to me for him shes is with a partner tht my grandson does not wont to live with i hav never asked her for help financialy for him but now he says he does not wish to return to his mums and stay i have made a claim for him just today for financil help in i dont kno what else to do i am more than happy to keep him here as he has been here for almost 3 yrs hes 13in is clear in what he wont a need some advice on what else i can do her partner is very argumentive in only 3 wks ago was charged with abuse on my daughter she has returned to her partner in ive had enough i wont whats best for my grandson in here is best for him i workfull time he is settled here now and doesnt wont to return plz help
Kaz - 21-Feb-18 @ 12:02 PM
Dave - Your Question:
Hey, I need help and advise!! Me and my ex split up a year ago, we have two children and she’s stopping me seeing them because I’ve got with another woman.I’ve tried my best to be reasonable but my ex is not cooperating. She’s got her family members to beat me up, she’s hit me in front of the children on many accounts and never picks them up on time! My daughter is 5 and said she wants to live with me, she was hiding behind the door when her mother came to pick her up. what Can I do so I can have my two kids living with me?

Our Response:
If you can't agree arrangements with the mother, you may have to apply to the courts for a residency order, or a 50/50 shared residency arrangement etc. The courts willexpect you attend mediation before you can apply for a court order though.
LawAndParents - 6-Feb-18 @ 2:47 PM
Hey, I need help and advise!! Me and my ex split up a year ago, we have two children and she’s stopping me seeing them because I’ve got with another woman. I’ve tried my best to be reasonable but my ex is not cooperating. She’s got her family members to beat me up, she’s hit me in front of the children on many accounts and never picks them up on time! My daughter is 5 and said she wants to live with me, she was hiding behind the door when her mother came to pick her up.. what Can I do so I can have my two kids living with me?
Dave - 5-Feb-18 @ 10:50 PM
Snow - Your Question:
I live with my partner and 14yr old boy , who wants 50/50 shared when we sell the house and go are separate ways , when we go are separate ways can she stop me having 50/50 or is it up to my son ?

Our Response:
You should be able to agree this, it's a perfectly normal/common solution and the mother should not be able to prevent it unless she considers you a risk to your son. If it were to proceed to the courts (for the courts to make a child arrangements order) you, your son and the mother would all be able to present a view.
LawAndParents - 5-Feb-18 @ 3:47 PM
JB - Your Question:
Hi, I am currently in a complicated case with my estranged husband over contact with my 2 children. One of my children made allegations against the father of physical abuse which was investigated by the police. After being constantly portrayed as implacably hostilemail I won the case with a judge awarding a non contact order for one of my children after speaking to said child. I am now having to defend myself in appeal against the father and social services whon have stated that I am emotionally abusing the children for upholding their wishes and the father has now been granted a contact order for both children and I have basically been threatened either having the children removed from me. My children are still refusing contact, surely they have rights too but noone is listening in the appeal court and I have been told to tell the children that they are going to get me into trouble. Can you advise me where I stand. Thanks

Our Response:
No we can't really advise on specific incidences like this. Perhaps one of our readers has been through a similar experience.
LawAndParents - 5-Feb-18 @ 10:37 AM
I live with my partner and 14yr old boy , who wants 50/50 shared when we sell the house and go are separate ways , when we go are separate ways can she stop me having 50/50 or is it up to my son ?
Snow - 3-Feb-18 @ 2:01 PM
Hi, I am currently in a complicated case with my estranged husband over contact with my 2 children. One of my children made allegations against the father of physical abuse which was investigated by the police. After being constantly portrayed as implacably hostilemail I won the case with a judge awarding a non contact order for one of my children after speaking to said child. I am now having to defend myself in appeal against the father and social services whon have stated that I am emotionally abusing the children for upholding their wishes and the father has now been granted a contact order for both children and I have basically been threatened either having the children removed from me. My children are still refusing contact, surely they have rights too but noone is listening in the appeal court and I have been told to tell the children that they are going to get me into trouble. Can you advise me where I stand. Thanks
JB - 2-Feb-18 @ 6:30 AM
Char - Your Question:
My daughter currently resides with my mother and step father she will be 9 next week. Her and I lived at my parents house from when she was born and she remained there when I joined the Army. My parents have had my daughter in their care ever since but there have been talks about my daughter coming to live with me now I am settled in my career. However, my parents said that my nearly 9year old daughter has the choice but she has been going back and forth on which she wants to do. My parents have become extremely nasty towards me when my daughter said she wanted to come with me and since I’ve returned to my work my daughter has changed her mind again to stay with them. (Coincidence). There is no legalities in place and I contribute financially for everything my daughter requires. I see her as regularly as I can but find it increasingly hard to go home because of my parents. I’m just looking for advice because I cannot see this being dealt with in an adult manner when it is surrounding my parents, and I am at my wits end on what to do next. T.I.A

Our Response:
Can your try mediation? It might be sensible to draw up an agreement so that your daughter spends specific times with you, rather just when she feels like it/wants to. Please don't let this split your family, it is after all in the interests of your daughter to be surrounded by people who will love and support her. If you find yourself unable to see your daughter, then you may have to resort to the courts.
LawAndParents - 10-Jan-18 @ 11:59 AM
My daughter currently resides with my mother and step father she will be 9 next week. Her and I lived at my parents house from when she was born and she remained there when I joined the Army. My parents have had my daughter in their care ever since but there have been talks about my daughter coming to live with me now I am settled in my career. However, my parents said that my nearly 9year old daughter has the choice but she has been going back and forth on which she wants to do. My parents have become extremely nasty towards me when my daughter said she wanted to come with me and since I’ve returned to my work my daughter has changed her mind again to stay with them. (Coincidence). There is no legalities in place and I contribute financially for everything my daughter requires. I see her as regularly as I can but find it increasingly hard to go home because of my parents. I’m just looking for advice because I cannot see this being dealt with in an adult manner when it is surrounding my parents, and I am at my wits end on what to do next. T.I.A
Char - 7-Jan-18 @ 5:07 PM
Hi my daughter lives with her dad and is very unhappy her dad took me court and the kids wanted to stay with him but the judge said if my kids wanted to come to me then we would have to sort it and he is not having none of it she is 15 and is on about running away from home which worries me need some advise as I no she would contact ne if she did but what do I do should I ring the police and tell them if she does or what I want what's best for my daughter
Pebbles - 6-Jan-18 @ 10:46 PM
Hi I have a daughter who will be 18 in 5 wks time. Our relationship has completely broken down. Her father is now threatening my partner and I. Where do I legally stand if I no longer want her living under my roof.Can I tell her to leave and go live with her dad? I have 2 children of my own I need to think about, plus my partners children.
Lynsmas - 29-Dec-17 @ 12:09 AM
Hello I need advice please my ex partner & father to my 5 children all live with him .we separated 10 years ago now & he took me threw the family court got all the orders he put in to the family court . Now our 14 year old daughterand our 10 year old daughter have both asked to come to live with me . They are not happy living with their dad but he has gone mad and told them they have got to live with him until they reach 16 years old. Please any advice would be great . Thanks kez
Kez - 20-Dec-17 @ 9:25 PM
Hi. My partner has 2 children from a previous relationship. They are 5 and 7. We have had shared care for the past 4 years. For the past few months they have kept saying to us that they don't want to live with mummy anymore they just want to see her one day a week. They hate going home to her and it's a upsetting situation every time they have to go home. We've been telling them that when they are bigger they can decide who they want to live with but I'm just wondering if a 5 and a 7 year old can make the decision themselves? They really really hate having to go home. It's not a matter of they have more fun here because we a both working full time and follow a routine with not much time for playtime during the week. Any advise?
Shaz - 17-Nov-17 @ 8:58 PM
BrainnotBrawn - Your Question:
My ex partner and I separated 6 months ago. We have 3 children and I am a special guardian to one other child also. Myself and the children left our family home, of 16 years, as the house was solely in my ex’s name. We made private contact and maintenance arrangements. The children have all a different view of the time spent with my ex. One refuses to see him, understandably but I endeavour to encourage contact. One would like more time but has been refused it by my ex. One was indifferent, has maintained contact up until recently when he has been pushed away in various ways and one (eldest, 16) who has, for reasons I have opinions on but won’t verbalise, seemingly become the favourite and is staying there increasingly often, much of the time, alone for several days. Before we left the family home, my ex partner seemed to spend much more time than ever before, with our eldest. During this time I became aware that my eldest child was distancing himself from me, was displaying hostility towards me and increasingly to his siblings. I did not react to the distance but obviously have not tolerated any disrespect from him and have continued to parent all four children in the same manner I always have. The situation with my eldest is deteriorating rapidly, to the point where he became mildly physically violent towards me a few days ago. For the whole family’s benefit I insisted he leave the house and go to stay with his father. I informed my ex about the behaviour. It fell on deaf earls and it seems that he has condoned it, made excuse for my son instead and gives the boy reason to feel justified in his actions. My ex now informs me that My son wishes to live with him, will claim any money he’s entitled to and will reduce his maintain payment. Although at this time I do think his staying there is for the best, we as parents, haven’t discussed the incident or our Son being there on a permanent basis. I have not agreed to it as the only parent with PR and nor do o consider it to be in my child’s long term best interest. My question is, at 16, can my son chose this fir himself? If he is alone much of the time etc? Many thanks

Our Response:
It's up to you as parents to decide what you feel is best. If this were to proceed to court for a child arrangements order, the courts would be very likely to consider your son's opinion in the matter.
LawAndParents - 16-Oct-17 @ 12:43 PM
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