Could a Child Choose Which Parent to Live With?
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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Comments...
@Beenie. Your partner would have to apply for legal guardianship and would need permission from the child's father - see here for more information.
LawAndParents - 3 February 2012 @ 11:31 AM
Hi,
Me and my partner have been together a year, were living together and engaged. Between us we have 3 boys. Mine who is 5 and who's dad hasnt had anything to do with him since before he was born adn isnt on the birth certificate, and his 2 from his previous marriage but who live with us.
I just wondered when my partner legally gains parental rights/ gaurdianship of my son?
beenie - 2 February 2012 @ 4:30 PM
hi my daughter lost her court battle to get custody of her 6yr old son whom has lived with dad for 3 yrs she took it back to court as my grandson is very distressed having to leave his mum and is begging her to let him live with her his behaviour has got very bad and is most distressed that the court want let mum have him back how else can we get someone to listen to what this boy is asking and is he old enough to have a say as he keeps saying he wants to die if he has to stay with his dad
george - 22 January 2012 @ 7:31 PM
Hi,
I have a 16 year old son who was 'lured' to Canada to live with his Dad. I live in UK with my partner(not the biological father). I have pleaded with my estranged husband to send my son for 10 days on holiday (I haven't seen him in 18 months) and he refuses to send him. What can I do legally -because I am desperate to see my son and connect with him once again. My son has Dyspraxia and has the mental age of a much younger age (13-14).
Angela Franklin - 3 November 2011 @ 12:59 PM
Hiya I have a court date for my resident order but what can I do if the mother does not turn up as she has done before?
woz - 8 October 2011 @ 3:13 PM
Question - My son will be 12 this year. He has stated on a number of occasions that he would like to live with me his dad. Currently I see him at least every other weekend where he stops, week nights etc, as he doesn't live too far away and will often ride around on his bike. I enjoy a good relationship with his mum, I pay a regular amount in maintenance. Its as good as I can be without being a family living together. The courts were never involved it was all amicable, well as much as the law allows for fathers. The split wasn't initiated by myself, I have suffered twelve years of missing out. He has a bedroom etc somewhere to stay, a home from home as it were.My question is how old does a child have to be before they alone can decide where to live? He, my son would like our roles reversed where I, the dad would be the main parent and he would see his mum every other weekend. Can I just inform his mum that he will be mainly living with me going forward and if she doesn't accept it to take it to the courts? Can you advise what his and my options are?
Paul - 18 August 2011 @ 1:04 PM
I hope you can help me. I am an Icelandic national and have two children, aged 8 and 10 and I have shared responsibility together with their father, who is English. We lived in England after the birth of the children but separated when the youngest was just 2 years of age. From that age, and up until December 2010, they have always lived with me and their father had them every other weekend (any more than that did not convenience him).In late 2010 I became unemployed and was due to lose the rental property I was living in with the children. After being unable to find suitable employment, I decided that the best thing for me and the children would be to go to Iceland, whether that be temporarily or not. The father of the children was not happy but did not object as such. The children attended school from january 2011 and I quickly gained employment. The children, however, were not very happy with the move, as they were in an unfamiliar setting, without their friends etc, as well as not speaking the language very well and would like to go back to the UK: They went to see their father in school holidays and in June went to stay with their father for the summer. They went with the thought that they would naturally come back to Iceland before the school starts.Now the children´s father is refusing to send them back, stating they do not like living in Iceland, and thinks they should continue living with him.I am absolutely distraught of the thought of not living with my children and am wondering what right I have. Clearly I know that the children would rather be in England due to that being the environment they are used to but I know that with time, once they have made friends and are comfortable with the language etc. they will be happy and settled in Iceland. I believe that the children are at an age where they cannot see that. If it came to having to go to court, are they at an age where their opinion in the matter is a strong factor in the judge´s decision?Any information on the matter would be much appreciated. A very frightened mother.
Scandinavian - 9 August 2011 @ 5:06 PM
If my son hasnt seen his father for 6 years, would he have the right to apply for access even though through court he gave up all his access rights
Jackie - 6 August 2011 @ 8:20 PM
My son who is 13 moved to Cyprus in December with his mum we had a verbal contract if my son didn't like it over there he can come back here and live with me and my partner. He's over here on holiday and has said he wants to live with me. Please could you tell me where I stand on this and would I need to go to court? Many thanks, Neal
nelly - 21 July 2011 @ 10:48 AM
This doesn't actually say if the child would have the legal right to choose who to live with. It just says about agreements between parents or the father applying to the court for a residence order, neither of these are the choice of the child. Can anyone say if the child can choose, what age the child must be to choose and where this can be found written in UK law. I have seen a few comments on other sites saying that as of 2005 a child of 9 or over would have the right to choose but there was no legal reference other than, 'My friend said a judge said that.....etc.' Not something I could make a sound argument with so any information would be much appreciated.Dan.
DanB23 - 20 July 2011 @ 12:04 AM
I think that it's only fair if she chooses as that means she'll be happier. I think the age is 12 to choose but not sure.
nicnoc - 29 March 2011 @ 7:56 PM
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