I want our children to live with me but my partner/spouse disagrees. What can I do?

If you and your partner/spouse cannot agree on where the children will live, you can apply to the Court for a residence order. In this case, the Court will decide where the child lives. The Court will try to disrupt the child’s life as little as possible, so will look at who has been the primary carer up to this point. Depending on the child’s age, the Court will ask who they would rather live with. Taking into account the child’s physical, emotional and educational needs, the Court will consider the following:

1. Which parent can better provide for them?
2. Which parent helps the child with their homework, cooks for them and cleans for them etc.?
3. Which parent knows the friends and teachers of the child etc.?
4. Factors such as whether one parent works long hours, making it impossible for them to care for the child;
5. The likelihood of potential harm to the child; and
6. The likely effect on the child of the order.

A Court will often take the view that a very young child needs its mother. A Court will not split up siblings unless it is clear in all the circumstances that this is best for the individual child. In some cases, a Court may make a shared residency order. This is where the child will divide their time between both parents’ homes. The child does not have to spend exactly 50% of its time in each home, but a Court will make such an order if it judges it appropriate in the circumstances.

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