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30 April 2015

Custody or Residence of a Child

30 April 2015

Custody or Residence of a Child

People still often use the term custody. However since The Children Act 1989 came into effect the Family Court uses the term Residence. This is to try to avoid the impression that children are some sort of property. 

Residence means where and with whom a child lives.

A Residence Order is an order made by the Court defining with whom a child shall live.

It is defined in the Children Act 1989 as follows at Section 8:
a residence order means an order settling the arrangements to be made as to the person with whom a child is to live
A typical Residence Order might look like this:
The Child, Jonny Smith, shall reside with his Father, Danny Smith.

A Residence Order can also define when a child should reside with someone. For example, it might say:
The Child, Jonny Smith, shall reside with his Father, Danny Smith from 9 am each Monday until 4pm the following Thursday. At all other times the Child shall reside with his Mother, Mary Smith.
The above example might also be called a Shared Residence Order because it sets out that the child will live with dad for part of the week and mum for the other part of the week.

You can see The Children Act 1989, and section 8 in particular, by clicking on the Government’s legislation website.

What does it mean to have a Residence Order?

In addition to defining with whom and when a child lives with someone, having a residence order has the following legal consequences:

It gives the holder of the Residence Order Parental Responsibility for the Child.
It entitles the Residence Order to take the child out of the Country for up to one month without the permission of the other parent with Parental Responsibility (unless doing so would interfere with any residence or contact order in force, as it often will).

People get very hung up about Residence Orders. However, many parents already have Parental Responsibility or could get it easily (see my page on Parental Responsibility) and the ability to take a child out of the Country without the other parent’s permission is a limited one if there is a shared residence or contact order in place because doing so will lead to a breach of that order so the other parent’s consent would be required anyway.

A Residence Order can be very important for other relatives or non-parents caring for a child because it is one of the few ways they can get Parental Responsibility for a child.

However, for parents the legal advantages are few and often none. Why then can so many cases come unstuck over the issue of Residence?

The answer is because of the psychological importance. If one parent has a residence order and the other a contact order, it can seem as if the child lives with one and ‘only visits’ the other. This is a misconception of the law – a contact order is just as enforceable as a residence order – but I can understand why sometimes people feel this way. The Government is trying to address this by changing Residence and Contact Orders to ‘Child Arrangement Orders’ in The Children and Families Bill. However, for the time being the law remains the same.

My advice would be not to get too worried about the name of the order you have. What is important to your child is the amount of time he or she gets to spend with you.

Parental Responsibility is also important – take a look at my page on it.

When will a Court make a Shared Residence Order?

This varies. It is very unlikely that a Court would make a Shared Residence Order when the child does not spend at least some time living with you (i.e. overnight). However, Courts do sometimes make Shared Residence Orders even when the amount of time spent between parents is not equal.

Often a Court will think that it is a good idea to make a Shared Residence Order if it feels that there needs to be a signal to both parents that each parent is as important to the child as the other parent or if it considers that making a Shared Residence Order reflects the reality of the situation.

There is no rule and much will depend upon the particular circumstances of the case.

What I can say for certain is that in most cases the Court will be less bothered about the labels it attaches to the way a child’s time is spent with each parent than it will deciding how the child’s time should be divided. Indeed the Senior Courts have said that the Court should decide the division of time first and then decide what labels to attach to that division (i.e. contact and residence or shared residence).

Author: Clive Baker

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