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Posted by familylaw on 19th December 2011

If you are applying for a Residence Order (custody), you need to show it is in the child’s best interest to live with you. You will need to think very carefully about their physical needs and daily routines.

One of the most important factors a court will consider in custody disputes, is the existing Status Quo that takes into account the family situation at the time the case comes to court. It is therefore extremely important that parents stop and consider what effect your moving out of the marital home will have. In the same way as spending time with your children, by moving out you may effectively be creating a new ‘status quo’ and you may struggle to obtain a Residence Order (Custody), or Shared Residence Order (Joint Custody), based upon the status quo established when you moved out.

How Residence (Custody) Is Determined

Family courts have a principle called “presumption of contact,” under which they have to do everything possible for fathers to see their children. Before making a ‘residence order’ the court will consider the welfare principle, welfare checklist, and the ‘no-order’ principle: as well as what is in the child’s best interests and the existing Status Quo. The court considers the following circumstances in deciding with whom/where the child will live:

  • The best person to be able to meet the child’s daily needs.
  • The domestic routine of the child up to the present (Status Quo).
  • The work commitment of the person/s applying for a residence order (custody order).
  • In the case of very young children, the court assumes they are better off living with the mother unless the contrary can be proven. However, the granting of a Residence Order is still subject to the case’s individual merits and may not necessarily invalidate the father’s probability of being granted a Residence Order.
  • It is generally considered beneficial for siblings to remain together and there is a preference for the child to be bought up by a parent as opposed to a non-parent, except in exceptional circumstances where the child has formed a strong bond with a non-parent.

It is possible to grant a Residence Order to more than one individual (in the case of shared parenting for example).

A Residence Order also provides Parental Responsibility to the holder of the order for the lifetime of the order, usually until the child turns 16 years of age unless there are exceptional circumstances. For example if an unmarried father without PR is granted a residence order, the court will also have to grant him an order for Parental Responsibility.

Who Can Apply For A Residence Order?

The following people have an automatic right to apply for a residence or contact order:

  • The child’s mother.
  • The child’s natural father.
  • The child’s guardian.
  • A stepfather or stepmother.
  • A civil partner who has treated the child as a child of the family.
  • A person with whom the child has lived for a period of at least three years out of five.
  • Any person who has obtained consent from those with PR, or anyone with a residence order, or the local authority if the child is in care.
  • All other people require leave (permission from the court) to apply for a residence order (e.g. Grandparents).

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