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Could a Child Choose Which Parent to Live With?

By: Lorna Elliott LLB (hons), Barrister - Updated: 17 Nov 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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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
I have guardianship of my 3grandchildren joint with mum. Can I allow the children to live with thier dad on a permanent basis???
hollyjoe7 - 15-Oct-17 @ 3:44 PM
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
BrainnotBrawn - 14-Oct-17 @ 1:44 AM
Jay- Your Question:
Hi this is about my friend and her son. He lives with grandparent under a residency order but is really unhappy being there and is out of control all the time he is with grandparent but when he is with mum he is calm settled and a different child. What rights does mum have and what can she do to get him back if she thinks it affects his health and wellbeing please x

Our Response:
She should speak with a family support worker. It would probably be necessary to apply to the court for a change to the residency order that's in place at the moment. The Family Lives Helpline might be useful.
LawAndParents - 4-Oct-17 @ 11:10 AM
Hi this is about my friend and her son. He lives with grandparent under a residency order but is really unhappy being there and is out of control all the time he is with grandparent but when he is with mum he is calm settled and a different child. What rights does mum have and what can she do to get him back if she thinks it affects his health and wellbeingplease x
Jay - 2-Oct-17 @ 7:37 PM
Chocpenguin - Your Question:
I have a problem my brothers partner has 4 kids 2 of which are my brothers. My brother is with her and helps with all 4 kids however as my niece doesn't have a sen or isn't the only boy or the baby she is being neglected. I've brought all her clothes, she is normally dirty and I have to wash her and she has nits all the time. She has asked to come live with me on several occasions. I want to take her on but my place is tiny, if they agreed for her to live with me could I then get benefits for her so I can then get a bigger place for her and a bed and all that stuff? She's 7 she's been asking me since she was 4 to live with me and saying she wished I was her mum. It's breaking my heart and her behaviour at school is getting worse.

Our Response:
In order to receive benefits in respect of the child, you would need to be her official carer.You may need to consider a special guardianship order. Social services may be able to advise.
LawAndParents - 25-Sep-17 @ 3:44 PM
I have a problem my brothers partner has 4 kids 2 of which are my brothers. My brother is with her and helps with all 4 kids however as my niece doesn't have a sen or isn't the only boy or the baby she is being neglected. I've brought all her clothes, she is normally dirty and I have to wash her and she has nits all the time. She has asked to come live with me on several occasions. I want to take her on but my place is tiny, if they agreed for her to live with me could I then get benefits for her so I can then get a bigger place for her and a bed and all that stuff? She's 7 she's been asking me since she was 4 to live with me and saying she wished I was her mum. It's breaking my heart and her behaviour at school is getting worse.
Chocpenguin - 24-Sep-17 @ 7:01 PM
Palmalarm - Your Question:
My son is nearly 14. I have shared custody of him but he has to sleep every night at his dad's. This is due to his sister who is nearly 18 deciding to live full time at her dad's 4 years ago and the judge wanting to Lees the siblings together. My son hates living at his dad's. He is unemployed, doesn't properly care for the kids (ie no bedtimes or mealtimes etc) and he is a recluse. My son says when he is 14 he is going to just come and live with me and my husband and his dad can take me to court if he wants (which he will). What should I do about this as I can't talk him out of it? I promised my ex that I wouldn't take him to court as I spent 7 years fighting for custody but I need to put my son first.

Our Response:
Can you not discuss this amicably with your ex? If your son is desperate to live with you and the older sibling is no longer a child, he may be in agreement. If you both agree, it doesn't matter that the court order was for alternative arrangements.
LawAndParents - 8-Aug-17 @ 2:35 PM
My son is nearly 14. I have shared custody of him but he has to sleep every night at his dad's. This is due to his sister who is nearly 18 deciding to live full time at her dad's 4 years ago and the judge wanting to Lees the siblings together. My son hates living at his dad's. He is unemployed, doesn't properly care for the kids (ie no bedtimes or mealtimes etc) and he is a recluse. My son says when he is 14 he is going to just come and live with me and my husband and his dad can take me to court if he wants (which he will). What should I do about this as I can't talk him out of it? I promised my ex that I wouldn't take him to court as I spent 7 years fighting for custody but I need to put my son first.
Palmalarm - 6-Aug-17 @ 8:27 PM
I have a 50/50 residence court order with my children's father. My son is 13 and has aspergers and adhd. Mydaughter is 12 and desperately wants to come and live with me full time. She's been very emotional over the past year asking if she can stay with me. She finds it difficult listening to her stepmother bad mouth me and also finds herself way of discipline alien to what she's used to. She was even told if she lives with me they would loose their house and she wouldn't be able to see her half sister anymore. She has been told many things by her stepmother which I find disturbing and has got that bad I know it's affected her mentally to the point where she's self harming. I've spoken to social services who said they can't do anything because she's not at risk of harm. My daughter is afraid of speaking up about it in case her dad and step mum find out. I feel stuck, frustrated and broken hearted for her as she's looking to me to get her out of this situation but I feel that unless I have the money to change the court order there is nothing I can do. Please, do you have any advice that might help? I'm desperate.
Flo78 - 26-Jun-17 @ 10:46 AM
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
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