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Shared living arrangements for the children of the family

by Teelan & Silwal

2 December 2020

With whom should the children live?

When parents separate, one of their first and main concerns is for the children of the family. Generally speaking, most parents can resolve issues about where the children are going to live and when the children are going to spend time with each parent between themselves. They do not need the intervention of the Court and certainly the Court does not want to make any Orders in respect of the children of the family unless it absolutely has to. Parents will always be encouraged to try to reach an agreement about how they are going to co-parent their children towards adulthood.

On occasion, however, that is simply not possible. Some parents can lose sight of the fact that children need to spend good quality time with each parent (unless there is a very serious reason as to why that should not happen). In addition, the parent with whom the children mainly live may want or need to move some distance away from the family home where the children grew up. It is on these occasions particularly that parents may need to issue court applications to formalise contact and the living arrangements for the children.

Historically, the Court would generally order that the children would live with one parent and for the children to have contact with the other parent.

In some situations, however, this arrangement left many parents who had a Contact Order feeling like a ‘second-rate parent’: one that was not deemed responsible enough to have their children live with them.

In appropriate circumstances, this position is now changing. The Court is moving towards making Orders for shared living arrangements in respect of the children. The aim of such Orders is to reflect the reality of the children’s living arrangements, namely that the children live with both parents. The Order will set out a schedule of when the children will be with each parent. It does not necessarily mean, however, that the children will spend an equal amount of time with each parent. The practicalities of this can make it extremely difficult to try to equally divide up a week between two parents. Rather, the aim of an Order for ‘shared care’ is to clarify that the children will live with both parents, even if they are predominantly with one parent during the school week. Such arrangements can also be relevant for children whose parents live some distance apart and indeed it may be very important for the Court to make an Order for ‘shared care’ in such cases, so that the parent who is left behind is still considered to have equal responsibility for the children.

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