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Could a Child Choose Which Parent to Live With?

By: Lorna Elliott LLB (hons), Barrister - Updated: 22 Jun 2024 |
 
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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Eddy - 7-May-20 @ 10:26 PM
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Bubblelush - 8-Dec-19 @ 9:31 PM
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Bubblelush - 8-Dec-19 @ 9:30 PM
I'm 14 and i'm a black kid from Baltimore. I can't stand my mom she is always abusing me i'm failing science and she is talking it too serious. I want to live with my dad because he has been in prison since i was 1 we share a perfect relationship together than me and my mom and he really gets me. He isn't serious about everything but he is just like "those dads". Please help me decide. I wanted to tell my mom that i wanted to live with him since i started 8th grade and she started abusing me. One time she gave me a black eye, another time she broke my legs and with a metal stick and i couldn't walk for 5 months straight. She gave me canker sores 23 times and i'm sick of it. I think it's best to live with my dad.
clinton - 2-Dec-19 @ 2:58 AM
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jane - 8-Nov-19 @ 4:19 AM
Hi, My son is 5 nearly 6. His mum has always had majority custody of him. He has been saying that he wants to live with me since he was 3. Over the past year he has started developing speech issues due to nerves around his mum. This is most noticeable in the form of stuttering and double emphasising the end of his words. He recently told his mum he hates her and doesn't like her. Today following their conversation she's cut our agreement of half school holidays down to seeing each other to four days. He told me it's because she fibs, she doesn't care about how he feels, she's really mean when she drinks and when he made a bad choice at school he couldn't stop crying when he got home but was trying to be really quite because he was scared that mummy would hear and go crazy.He understands what a lie is and can explain how he feels and the reasons why he feels the way he dose. Given these circumstances would the court listen to him or would the court say he's too young and force him to live with her until he becomes a teenager?
Dan - 2-Aug-19 @ 7:20 PM
Hi, My son is 5 nearly 6. His mum has always had majority custody of him. He has been saying that he wants to live with me since he was 3. Over the past year he has started developing speech issues due to nerves around his mum. This is most noticeable in the form of stuttering and double emphasising the end of his words. He recently told his mum he hates her and doesn't like her. Today following their conversation she's cut our agreement of half school holidays down to seeing each other to four days. He told me it's because she fibs, she doesn't care about how he feels, she's really mean when she drinks and when he made a bad choice at school he couldn't stop crying when he got home but was trying to be really quite because he was scared that mummy would hear and go crazy.He understands what a lie is and can explain how he feels and the reasons why he feels the way he dose. Given these circumstances would the court listen to him or would the court say he's too young and force him to live with her until he becomes a teenager?
Dan - 2-Aug-19 @ 7:19 PM
My ex has cut all access to my children I'm trying mediation but I haven't seen my kids for nearly 2 months. There is no court order on place but I don't want to do anything that can land me in trouble any advice would be appreciated
Dave - 17-Apr-19 @ 2:20 PM
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Jonesy83 - 16-Apr-19 @ 10:33 PM
My two youngest children are currently staying with their father on a residency order but my just turning this month 12year old daughter wants to be across the road living with me full time. She needs her mother and craves this so much. Although father has residency order he has both children in no set routine his parental skills are awful he punishes her by taking her from his house to his mother's and sees that punishment I think he does not address situation well at all. They are separated all times one at his and one be at his mum's. She wants home to me what should we do to enable this. Advice appreciated. Thanks.
Orvil - 4-Mar-19 @ 5:19 AM
My younger brothers 11 & 13,are wanting to live my dad, they hate living with their mum so much so the have run away twice, my dad returning home and finding them there. My dad would love for them to li e with him but do t know what to do? HELP!
TL - 7-Jan-19 @ 6:42 PM
Hi my daughter is living with her dad at the moment but she is 12 years old. And she wants to come home to her mom? How did she go on about it?
kelly - 5-Oct-18 @ 2:25 AM
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
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