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Applying for a Residence Order (Custody): Court Procedure

By: Lorna Elliott LLB (hons), Barrister - Updated: 19 Aug 2020 |
 
Court Family Custody Residence Order

If you are seeking a residence order (formerly referred to as custody) of your children, you will need to use Children Act form C1 which is readily available from the HM Courts and Tribunal Service website. The order that you will be seeking from the court is a ‘residence order’. It is possible to share custody with your ex-partner, although the courts are sometimes unwilling to grant these types of orders on the basis that they generally mean upheaval for the child – in that the child has to live in two homes.

A residence order also gives the person with the order ‘parental responsibility’ for the lifetime of the order, which usually lasts until the child turns 16. If you are in any doubt as to the type of order you should be applying for, seek the advice of a solicitor.

What a Residence Order Means

A residence order enables a parent to take their child out of the country for a maximum period of one month without having to seek the other parent’s consent. If you are seeking to emigrate on a permanent basis with your child, you can only do this with your ex-partner’s consent, or by order of the court. Similarly, a residence order does not allow you to change the child’s surname without the written consent of your ex-partner. For more details on this, see Specific Issue Orders on this website.

It is worth noting that, if you get a residence order, this does not give you carte blanche to make unilateral decisions in respect of your child’s upbringing. Both parents still have Joint Responsibility in determining how your child should be brought up.

Who Can Apply For a Residence Order?

The parent or guardian of a child can apply for a residence order, as can the married step-parent of a child, as long as that child lived with the step-parent as ‘a child of the family’. It is also possible for someone who has lived with the child for at least three years to apply.

In making a residence order, the court will consider a number of issues:

  • What the child wants – although the court does not have to act on the child’s wishes, they must take it into account
  • The child’s emotional, educational and physical needs
  • The likely effect on any change in the child’s life
  • The child’s sex, age and background, as well as anything else that the court deems relevant in respect of the child
  • Any harm that the child has suffered or any risk of harm
  • The capability of each parent or other person of meeting the child’s needs. This includes work commitments of the person applying for the residence order, and whether their routine is conductive to caring for the child.
  • The domestic routine of the child up until the present time

Other Considerations

If the child’s parents are unmarried, the mother has sole parental responsibility until the father gains parental responsibility. This can be done either by agreement or through a court order. If a child is very young, the court generally assumes that the child will be better off with his or her mother unless the contrary can be proven. You should not let this dissuade you, however – all cases in the family court are decided on their own merits and just because you are the father does not mean that you won’t get a residence order.

Help Filling Out the Forms

There are numerous resources online that can assist you with filling out the forms to apply for residence orders. The HM Courts and Tribunal Service website publishes guides to assist with The Family Rights Group, which has a step-by-step procedure to help you through the application. There is a lot more information on the Cafcass website and Dad Info, among others.

Check out the Separated Dads Forum... It's a great resource where you can ask for advice on topics including Child Access, Maintenance, CAFCASS, Fathers Rights, Court, Behaviour or simply to have a chat with other dads.

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long story short, my 2 kids live between their mother and myself roughly 50/50, their mother is in a toxic relationship to the point they are constantly arguing and her partner is telling her they have to leave his house on a pretty much monthly basis. ive been extremely lenient untill now. a couple of days ago her partner got into an argument with my 11 year old son about being on his phone so my son shouted at him as he was trying to message me to see how i was. at this point the boyfriend has lost his temper and told my kids they are no longer welcome there. ive then told the mother that they are not going back to that house as my kids decided they didnt want to and didnt feel safe there. however today after allowing their mother to take them out she has taken them to see her partner who has apologised and now my kids have decided they want to go back to the house later this week and carry on as normal. i need advice on how to handle this. would social services or court be the best approach.
ineedadvice - 19-Aug-20 @ 7:11 PM
Hi I have an 8 year old son who currently lives with his mother in wales UK. Over the recent coronavirus outbreak/ lockdown, my family and I suggested to have my son here with us in Manchester give respite to his mother and also allow her to return to work as I was on furlough. soon after his arrival I was looking through his mobile phone and found a string of messages dating back over a month which were cries for help from my son to a family friend on his mothers side as he had been left vulnerable without food, supervisionfor entire days at a time while his mother lay in bed unable to wake up. We initially decided to have my son remain with us for an undecided amount of time until his mother could prove she had sought help for what we found was alcohol and prescription drug abuse. Sadly the mother denied having any such issue and very short after filed for a court order requesting the immediate return of my son back in to her care. my son had decided over the few weeks he was with us that he wanted to live with us permanently.Since then I have been told by an ex-partner of hers that he has photo/ video evidence of the extent of the neglect which he will be willing to share if called upon as a witness in court. I don't have very much money at all so am going to be representing myself as my ex has filed a court order to stop me ever having contact with my son as I refused to let her physically see him for 6 weeks prior to the court order.I also submitted a C100 form during this time which has now been added to the court files which was asking for custody and the reasons behind my request. I do feel as though I have prepared a good amount of quality-presentable work for the court, however I am in need of recent case studies......and any other advice around going to court, such as what happens in each session, what forms, statements etc i should be preparing. Any advice at all would be greatly received. cheers guys Dan
dan - 6-Jul-20 @ 7:25 AM
Hey does anyone know if Social Services take a residence order for someone who is voluntarily looking after a child, what is the minimum term (if any) they can be taken out for?
Concerned relative - 13-Jun-20 @ 3:55 PM
I need some help or advice has today I received a non molestation order up to this point I had no idea this was going to happen the information that has been presented against me is all untrue lou-ann do not know so what I need to do about it and how to go round it I'm not in the financial position to get a solicitor that really do need some legal advice if anyone knows where to go and to get help if you can get back to me
Si52 - 24-Apr-20 @ 6:35 PM
@daveyjones4563.after reading all these posts wow you lot are a different breed .im old school .work with the mum wtf mate I would (never) work with any ex .ha ha go to a parenting group .mate for me I haven’t seen my child in 13 years and have never been to a solicitor for rights and never will .i might be the biofather (maybe ).but I have zero interest in the child after 13 years off zero contact mate there is no emotional attachment truthis if she was raped or mistreated I don’t care it’s been to long for me to care .i went though a( weak moment low point)and called the mother about 5 years ago now and she said do you no nearly lost your rights because she was going to change name or something (stuffs me) anyway I sighed the child passport papers now I( regret it )because I am never going to see the( child again) and realised it was a( mistake calling) because I was once again in off the( courts) been but on orders again .never will I( ever speak or send a message to that women ever again I swear that on the bible ).if her new partner wants to adopt the child you have my blessing go for it because I want nothing to do with the child I have zero feelings for the child to be honest I don’t care if she is (dead or alive) .sounds bad but . I’m honest .
C.laurie - 16-Mar-20 @ 10:04 PM
@daveyjones4563.after reading all these posts wow you lot are a different breed .im old school .work with the mum wtf mate I would (never) work with any ex .ha ha go to a parenting group .mate for me I haven’t seen my child in 13 years and have never been to a solicitor for rights and never will .i might be the biofather (maybe ).but I have zero interest in the child after 13 years off zero contact mate there is no emotional attachment truthis if she was raped or mistreated I don’t care it’s been to long for me to care .i went though a( weak moment low point)and called the mother about 5 years ago now and she said do you no nearly lost your rights because she was going to change name or something (stuffs me) anyway I sighed the child passport papers now I( regret it )because I am never going to see the( child again) and realised it was a( mistake calling) because I was once again in off the( courts) been but on orders again .never will I( ever speak or send a message to that women ever again I swear that on the bible ).if her new partner wants to adopt the child you have my blessing go for it because I want nothing to do with the child I have zero feelings for the child to be honest I don’t care if she is (dead or alive) .sounds bad but . I’m honest .
C.laurie - 16-Mar-20 @ 9:58 PM
John Smith. A child age 2 believe it or not hardly can say any words at that age. Also at 2 years old they are in the terrible twos. Instead of slating your baby mums parenting probably go on a parenting group yourself which explains a child’s development and what ages they do certain things at etc. Why don’t you work with the mhm instead of hoping the internet would do something!!
Daviejones4563 - 15-Mar-20 @ 10:57 AM
Hi I had a one night stand with a lady some time ago, she had a child which we have done a DNA test and the child is mine. I am not on the birth certificate. The mother is a known prostitute who advertises her services online (proof provided) also with a history of mental health. The child is showing signs of neglect as at 2 years old they are unable to talk or string any sentences together, along with being unable to control their temper or rage with not getting their own way. What would my stances be on obtaining full custody?
JohnSmith - 2-Mar-20 @ 7:30 PM
Hi, 14 months ago, my wife took our children 8 and 9 year old boys, and left the house accusing me of Coercive Control. As she refused to allow me any contact, I had to take this issue through the courts. We have just concluded the Final Hearing, The judge said that there was no proof or evidence of Coercive control, CafCass stated that I was a suitable parent and they had no issues with the boys being with me (an order was made to share school holiday access including 2 weekly stay with me over summer holidays). My wife home schools the boys and they are falling behind in their education, I want them to live with me to return to the local schools. Despite the judge stating that I am an acceptable parent, He awarded residence to my wife, due to the rules of 'maintaining Status Quo'. What is this rule and is there anything more I can do now ? Thank you, Philp
Philp - 7-Feb-20 @ 8:43 AM
Hi there the mother of our child has become sick with a degenerative illness she and I want me (father) to have custody of our child how would we go about this thanks in advance.
Jason Riley - 3-Jan-20 @ 3:39 PM
Hi so I've just been to collect my 5yo daughter from here grandmothers house together there and find out neither of my daughters mother or grandmother had a clue where she was......as far as I care that's neglect in the worst way.now thinking I want sole custody so this can never happen again.
Dude1986 - 21-Jun-19 @ 6:12 PM
I have a 5 year old girl who currently have share care 50/50 with her dad. I have a restraining order against the dad which was put into place in December for 5 years which states he can only communicate to my mum regarding access for our daughter. It is becoming quite difficult with the 50/50 care without being able to discuss things and him wanting every decision to be made equally. Our daughter has suffered with medical issues which seem to have resolved itself when she is with me but not with dad which again I cannot find out why as we cant communicate. I would like for my daughter to spend more time with me so I can try and get to the bottom of the issues plus I am pregnant so will be off work and able to spend more time with her rather than her being with Dads family members etc This I know he will not allow as he wants it 50/50 and says I am not allowed to change this without his consent (even though this agreement is only verbal between ourselves, no court has actioned this). Am I able to apply for residence so access can be arranged? by no means do I want to stop my daughter seeing her Dad, I just want to understand what the issues are with her?
mum - 29-Mar-19 @ 11:35 AM
Hi I'm a mother of two young boys aged 4 and 1. My ex is the father of my youngest and we separated after living together for 3 months due to domestic violence. I was temporarily living with his family because of the house not being suitable and safe for myself and my children and my eldest son was abused by them emotionally and mentally as he is autistic. Since my youngest was born he hadn't spent much time with him and preferred to work. He is self employed as a private hire taxi driver. He would work from lunch (when he gets up)till early hours in morning. 2 or 3am. He didn't show much interest in his son and would take him to his mother's who I don't get along with and leave him there. I didn't get much choice in that matter because if I refused a arguement would happen and he would take him anyways. My eldest would be left out in the situation as he isn't biologically his. Due to the abuse my eldest and myself received I have to safe guard my kids. I let him have supervised contact with his son every Monday 10 till 3 as my eldest is at nursery and I need to get back for him. I had to stop this contact by my health visitor and social services because I was still being abused by him and he was being unreasonable and always threatening me with court if he doesn't get his own way. He now wants contact with his son unsupervised in which he would take him to his mother's where I will not get him back. His mother and sister will be looking after him as my ex would be going off to work or won't know how to look after my son. When my son starts crying he would take off because he can't handle it. He wants more contact and overnight stay. He hasn't a clue how to look after him and it would be his mother or sister taking care of him. What should I do?
Sian - 25-Mar-19 @ 3:01 AM
My ex partner use to live with me in England. We where together for three years and we had a child and split up. I am on the birth certificate. She moved to Northern Ireland about 6 months ago and I allowed it. I see my child often but sometimes the ferry or flight gets cancelled so she makes me wait to the next week to see him. I see him about a week a month. I want to put this in a court order to make sure I keep seeing him. Will I have to go to court where they reside in Northern Ireland or will they have to come to court in England as I live here and I am putting the court order in. I am aware they work separately.
KV - 21-Mar-19 @ 1:26 PM
My wife took my child without my consent and in my absence from home n moved from London to Telford which is 180miles far frm me. She start work there in factory and her shifts are rolling some times morning, day and night shifts as well she declared that she found new partner and start relationships. I have 9 years old son, how can I get my child full custody from her. Co my child social behaviour became very poor as well I have not any contacts with my child . My ex from Lithuania and in 2012 she diagnosed frm Lithuanian hospital that she is Schizotypal disorder F12. Coz of my ex health I’m worry for my son that he can be same situation how she is. I have my ex medical report which is issued frm Lithuania and translated and notarised. Can I provide this to court for child custody
Hunny - 5-Feb-19 @ 4:03 AM
Hi. Ive recently came out of a abusive relationship my ex got a caution for stalking me and for abusive texts one which was a threat to my 11 year old son saying he would break his arms and legs. He was getting contact with our 5 year old daughter through his dad collecting her from me and taking her to my ex. It went well for 2 weeks until my ex decided he didn't want to return her at the agreed time I had no phone call from him about keeping her longer and he didn't answer my calls I was frantic with worry that he wasn't gonna return daughter. I eventually got her back home at 9:20pm and the excuse was he didn't want to leave the party he was at so he thought it was right to keep a 5 year old out that late. To top it off iv been receiving more nasty texts to myself my 18 year old daughter and he's also messaging my 5 year old saying he's going to get custody of our to girls. Inam putting in for a injunction order on him and was wintering I'd I could apply for full custody of our 5 year old
Mum of 8 - 31-Jan-19 @ 5:38 AM
@max .her daughters (coming age )so they could work together mummy show her the ropes .and we all (prosper )great business (easy work) with (great awards) and I know they would love to travel to (America again )very expensive but working for me your dreams will become a reality (money ).2019 money making year .
S j b - 30-Dec-18 @ 10:14 PM
@max.i want my x to come back and (work for me)and I only take (60 percent profit )I am (really fair )with my girls and (treat them good) .my x has a (set off skills) that is (madness not to make a profit from )with my (help and guidance and protection ) we all prosper (strictly business relationship ).but a (welcomed team member) off the business .?
S j b - 30-Dec-18 @ 9:44 PM
My wife and I recently separated. We have a nine year old son. She is refusing to let me have custody. My question is: my wife has been an escort for a number of years as well as working a “normal” job. Would being an escort give me more leveraged in a custody battle? She refused to give up escorting saying it pays the bills. We are getting divorced on the grounds of her adultery.
Max - 30-Dec-18 @ 6:55 PM
Hi my ex partner left me and moved away we my son i had brought her daughter up and my son 4 the 5 years together my son his now 3 and I wasent put on birth citificate when it was done and trting 2 get on now has she won't corapte but I still see my son on a regular basis she just doing this 4 evil and selfish reasons can I still get on if she keeps refusing x
Ady - 7-Dec-18 @ 6:15 PM
Hi, My partner has been separated from his wife for almost 18 months. she met someone very soon and my partner stayed at home for a long while to make sure his little boy was ok there and to look after him whilst the wife went out as she ended up going out almost every day. My partner then left the property earlier this year when it got too much and she asked him to not come home and wanted him out ASAP. she moved her boyfriend in almost straight away, whilst the house is still in his name alongside herself, she moved him in without asking or telling my partner. this boyfriend has since gone missing various times and causes a lot of stress on his wife (currently go through a divorce) she then asks us to have the little boy when he has gone missing, which is all ok with us but this is happening to often with the boyfriend going missing, now where do we stand in trying to get custody of the little boy? will this go against her that she has a boyfriend that is always going awol and giving over the little boy to us knowing he is going to be out of preschool because we live 1 hour away from school and both work so we struggle to get him to school? he also plays up before her goes home, he is always good with us, of course as any normal child he does play up at times but he constantly says all weekend out of the blue 'no back to mummy's' and 'no see marky' which is the boyfriend, when they was together my partner done everything she hardly done anything for the little boy, he done all school runs, he got him ready, done school lunches, breakfast,dinner etc etc. we just want to know where we stand with all this as he gets very very distressed about going back with her and he always has done since my partner has moved out of the property which is almost a year now and he seems to be getting worse each week.
anonnoymus - 3-Dec-18 @ 2:34 PM
My husband refused to give back my 2 children after a arranged visit . We were seperated due to his behaviour towards me and he had been given an ' affidavit ' at a previous court case. He then got court papers served at my home two days after dissapearing with the children for his bid at court for custody. I was then inundated with abusive texts to not attend court as i would be punished. I didnt attend court but had a solicitor who told them of the affidavit and the abuse. My husband got custody . I have no criminal recordnever had a alcohol or drug problem and never had social services involvement. I want a re trial is this possible?
Mum of 2 - 15-Nov-18 @ 6:42 AM
Hi I'm a father of 9 year old boy who was handed over to me when his mum lost her house due to not paying rent she will not out me on birth certificate keeps saying Ys you can then don't turn up. Now he has been living with me for 4 years and now she turns up to take him what can I do.
Doz - 11-Nov-18 @ 11:34 PM
Azzicle - Your Question:
Hello,I am an (unmarried) step mum to a beautiful boy (7) and girl (2.5). Since my partner and his ex split 3 years ago there has been non stop issues. The ex (J) files for a no notice order in April 2016 for domestic violence and worry of child abduction. there was no evidence proving this but it still managed to get through to court. The daughter (B) wasn't born at point of the court order so it was hard for the judge to rule any definite contact between B and her dad. in the court order it states 'to be increased to the same hours as son (A) but at a child led pace' we have B every Sunday 10-6 currently but J is reluctant to increase time/have overnight stays. will it have to go back to court to get progress on this? J has used the excuse that we can't increase contact to weekdays with A because B's bedtime is 7pm. despite B being in the car when J is picking up A and we are told often be J that the kids have had a very late night so they will be tired.B is often filfthy on contact with us and is more often than not, not strapped into her car seat properly. when she is dropped at the meeting point she is halfway out of the car window without anyone unstrappi g her. Also J is now living with a new man who A really dislikes. J has got B to call the new man 'daddy' despite their break ups often for months at a time. We are looking at filing for residence of A But wondering what the judge will seem necessary (A has a very bad attendance at school, is often very upset and isn't told to bathe often. when he comes to us he stinks has dirt embedded in the cracks of his feet and hands and is generally unhappy. he has stated on multiple occasions that he wants to come and live with us but as he is only seven is his opinion going to stand for anything? He's starting presenting with anxiety (picking the skin from his fingerprints and has been diagnosed with a tick in which he is constantly smelling his hands) it upsets both me and my partner very much to see him so unhappy and we just want the best for him. I hope that wasn't to complicated to read. there is a lot more to it but I have tried to ask as concisely as possible. Thank you

Our Response:
In answer to your questions, if your partner's ex is not keeping to the order, then if she will not attend mediation then your partner will have to refer the matter back to court for an enforcement of the order. With regards to filing for residency of the child, it is highly unlikely a court would remove a child from their parents unless absolutely necessary. Plus, it would choose not to spilt siblings. Social services would have had to have been involved and it be deemed the mother cannot care for the children properly before such action would be taken to take the children from the primary carer.
SeparatedDads - 19-Jul-18 @ 2:54 PM
Hello, I am an (unmarried) step mum to a beautiful boy (7) and girl (2.5). Since my partner and his ex split 3 years ago there has been non stop issues. The ex (J) files for a no notice order in April 2016 for domestic violence and worry of child abduction .. there was no evidence proving this but it still managed to get through to court. The daughter (B) wasn't born at point of the court order so it was hard for the judge to rule any definite contact between B and her dad.. in the court order it states 'to be increased to the same hours as son (A) but at a child led pace' we have B every Sunday 10-6 currently but J is reluctant to increase time/have overnight stays.. will it have to go back to court to get progress on this? J has used the excuse that we can't increase contact to weekdays with A because B's bedtime is 7pm.. despite B being in the car when J is picking up A and we are told often be J that the kids have had a very late night so they will be tired. B is often filfthy on contact with us and is more often than not, not strapped into her car seat properly.. when she is dropped at the meeting point she is halfway out of the car window without anyone unstrappi g her. Also J is now living with a new man who A really dislikes. J has got B to call the new man 'daddy' despite their break ups often for months at a time. We are looking at filing for residence of A But wondering what the judge will seem necessary (A has a very bad attendance at school, is often very upset and isn't told to bathe often.. when he comes to us he stinks has dirt embedded in the cracks of his feet and hands and is generally unhappy.. he has stated on multiple occasions that he wants to come and live with us but as he is only seven is his opinion going to stand for anything? He's starting presenting with anxiety (picking the skin from his fingerprints and has been diagnosed with a tick in which he is constantly smelling his hands) it upsets both me and my partner very much to see him so unhappy and we just want the best for him. I hope that wasn't to complicated to read.. there is a lot more to it but I have tried to ask as concisely as possible. Thank you
Azzicle - 17-Jul-18 @ 9:46 AM
I split from my sons mother in 2015 and have had my now 8 year old son stay with me every weekend. In the last 3 years she has moved him from school to school without my consent. He is at school number 4 and is very unsettled, to the point of being disruptive every day in his class. I have done my best at giving him support to get him stable but he tells me that his Mother is telling him his teachers are bad and stupid... She has had an heated conversation already with the head teacher and I fear she may move my son again. Am I right in thinking that my only hope of stopping her succeed would be to go to the courts to apply for a residence order? I do have a meeting with the headteacher to discuss my concerns and to request my sons edgucation records. I was told that records are passed from one school to the next, my intentions are to use this in court to illustrate that his Mother is not thinking of our sons education and well being. What else could I obtain that would strengthen my case?
Barney - 24-Jun-18 @ 2:16 AM
@Stupidunicorn- can't you just organise a supervised visit? Social Services should be able to make sure it goes through court and not mediation, as mediation is non-binding.
PaulB - 21-Jun-18 @ 11:46 AM
My stepdaughter is currently living with us and has been since 18 May 18 following domestic violence at her mothers and her being placed on the child protection register for emotional abuse. We have got her enrolled in a school local to us and she is starting to be settled. Mum hasn’t seen her for 5 weeks,let her down three times in the last week re contact... the arrangement is supposed to be following a meeting on 8th June that she has her every fortnight. Our concern is we have found out she is moving out of the City and everyday since Saturday she’s asked to have her and we and her school believe she intends to take her and not bring her back. Monday we reiterated we must stick to the arrangement agreed in a social services meeting, she agreed but a day later was asking to have her. We therefore have completed a c100 form and wish to put in an emergency arrangement order but it says we have to have a mediator sign it first. Due to the urgency is there any way around this because she won’t agree to a mediator and time is of the essence and my husband needs me to sort this as he’s at work
Stupidunicorn - 20-Jun-18 @ 6:32 AM
Hello please can i have help!? My ex and i broke up 6 years ago the relationship was full of domestic abuse of all counts. We have two children together. Hes never been regular with contact or payments but in april this year my daughter broke her arm in his care, he refused to seek medical treatment ir administer pain relief, 3 days later she returned home to me and the instant i saw her we went to hospital. The social services have been involved and classed it as child negligence on fathers behalf then a couple if days after my daughter had a panick attacj saying she cant tell me stuff or he will hurt her and kill me and if she moves from her bed he will throw water over her. The police were involved and they and social told me to cease contact til our next court hearing. My daughter told cafcass all about it and revealed that he mentally and emotionally bullies her too (which shes never disclosed to me) anyway my ex applied for emergency court to get contact and the judge never read any authority reports or the email cafcass sent them and granted him reinstated access til we are back in our normal court case in june. They went to his this weekend and he left them with his partner all weekend and they tried bribing them with new toys to change their stories. Im so scared that he is going to be given more access and iv heard he is applying for residency too. Neither of my children want to see him they have told cafcass and authorities this but in the emergency hearing i was told it wil affect their residency if i dont send them. Im so scared and upset for them especially now my oldest is starting to go through what i did by her father. I feel like the courts are just ignoring everything Please help
Anxious parent - 6-Jun-18 @ 12:14 PM
I am coming for what’s mine (b ).dont worry about legal smigle stuff.
Lester - 13-Mar-18 @ 4:27 AM
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