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Category: Family Law
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Experience:  Moderator
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when unmarried parents split who is the legl guardian of a

Customer Question

when unmarried parents split who is the legl guardian of a 12 years old child
Submitted: 2 years ago.
Category: Family Law
Expert:  UKfamsol replied 2 years ago.
lHello and thanks for your question.

With regard to children, it doesn't make any difference whether you were married or not.

I need a bit more information to be able to answer:-

Are you the mum or the dad?
How long ago did you split up?
Is the child a boy or a girl?
Who is the child living with now?
How often does the other parent see the child?
Has the child said anything at all (without either of you trying to influence him or her) about who he or she would like to live with?
Customer: replied 2 years ago.


split 3 years ago


split between both and private boarding school

father when child is at home thurs sat afteernoon till mon morning

does not want to be with mother when home from school as not happy with mothers behaviour

would like to live with father and partner with her children

Expert:  UKfamsol replied 2 years ago.
Hello again and thanks for the extra information.

If the parents cannot agree which parent a child is to live with after they have separated, then either parent can apply to court for a residence order under section 8 of the Children Act 1989.

Here is the court form and accompanying notes:-

The court fee is £215. Someone on a low income may be eligible for fee remission - here's the relevant information about fee remission:-

However, going to court is time-consuming, stressful and expensive, so if the parents can negotiate a solution between them, whether between themsleves, or via solicitors or via mediation, then that is much better for all concerned.

The family court anyway now requires the parties to have attempted mediation before it will consider an application to court. Mediation is a round-the-table discussion with a trained and neutral mediator who helps the parties to find a fair and workable compromise for all concerned. As your granddaughter is now 12, she might even be allowed to attend the mediation sessions - at least after the intial session - but this woudl depend on the mediator.

Here's where to find a local family mediation service:-

If mediation breaks down, or the mother refuses to attend mediation, then as a last resort the father can apply to court for a residence order. But he needs to be aware that the court decides all applications concerning children acording to what is best for the child rather than which parent shouts loudest, and that the court is very reluctant to change the residence of a child unless there is very good reason indeed to do so.

Even if the court makes a residence order in favour of father, the court will at the same time make a contact order in favour of mother which is likely to be at least as much time with mother as the child currently spends with father. A residence order is what used to be called custody. It is intended to settle permanently with which parent a child is to live. However, the court also has the option of making a shared residence order ie in the names of BOTH parents, to stress that both parents share responsibilty for this child. A shared residence order can specify the amount of time that the child is to spend with each parent.

As the parents are not married and the child was born before 1 Dec 2003, the dad does not currently have parental responsibilty, unless he already has a parental responsibility order or the parents have signed a parental responsibility agreement. If he is sucessful in his application for a residence order, the residence order automatically confers parental responsibilty. But to cover the possibility that his application for a residence order is not sucessful, he should apply for a parental responsibility order at the same time as the residence order.

Parental responsibilty is largely symbolic. A residence order allows the person named in the order to make all the day-to-day decisions about that child eg what time they are to go to bed, have for their tea etc, but for all major decisons in that child's life eg which school they are to go to, whether a child 's name should be changed, whether that child can be taken to live abroad - they must get the consent of all those with parental responsibilty or without that, permission from the court.

In considering what is best for the child, the child's wishes and feelings will be taken into account by the court, and the older a child is, the more weight is given to their views. Your granddaughter at the age of 12 is just at the age when her views will start to be considered by the court - but they will not be the deciding factor - but only one factor in deciding which parent she would be best off with.

The court will consider the welfare checklist in section 1 of the Chdilren Act 1989 to reach its decision.

My advice is that the parents should try their best to negotiate if at all possible rather than go to court. It may be helpful for both to have some independent face-to-face legal advice. Here's where to find a specialist family law solicitor:-

I hope this helps and I wish you the best of luck.

Thanks and best wishes...

Expert:  UKfamsol replied 2 years ago.
Hello - I see that you have kooked at my answer but not accepted it.

Is there anything you'd like further clarification on, or any part of your question you feel I have not answered?

Do let me know and I'll do my best!


Expert:  Nicola-mod replied 2 years ago.

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