Can my ex take my child away from me?

It is a sad fact that when separated parents fall out then each may make threats against the other.

One such threat, and unfortunately not an uncommon one, is that one parent will take their child from the other.

But when it comes to the question, can my ex take my child away from me? Ultimately, the decision of which parent a child should live with, is a matter for the family court to decide, rather than the parents.

Of course, one parent may attempt to take the law into their own hands, so we will examine here two scenarios: where one parent seeks to take the child from the other through the courts, and where they try to do so without a court order.

Changing residence through the courts

(Note that, for simplicity, we use here the term ‘residence’, to indicate with whom the child will reside, or spend most of their time. Residence is, in fact, an old term, replaced by child arrangements orders that state with whom the child should live.)

Obviously, it is usually the case that when parents separate their child will reside primarily with one of the parents.

And obviously the other parent may think that the child will be better off residing with them.

In such a situation, the proper course for the other parent is to apply for a child arrangements order, stating that the child should live with them, not the other parent.

When deciding what order to make the court will consider what is best for the welfare of the child.

And to determine what is best for the welfare of the child the court will consider a number of factors, including:

• The ascertainable wishes and feelings of the child, considered in the light of the child’s age and understanding. Thus, if an older child states clearly that they would prefer to live with one parent, then the court may well go along with that wish.
• The child’s physical, emotional and educational needs, for example special health needs, or special educational needs, and which parent can best meet those needs.
• The likely effect on the child of any change in his or her circumstances – so if, for example, a move to the other parent is considered likely to have a detrimental effect upon the child, then obviously the court may refuse to order a change of residence.
• Any harm which the child has suffered or is at risk of suffering – if it is considered that the child has suffered, or may suffer, harm by living with one of the parents then clearly this may decide the issue of who they should live with; and
• Lastly, how capable each of the parents is of meeting the child’s needs – obviously, if it is considered that one parent is more capable than the other, then this will have a large bearing upon the court’s decision.

In short, when it comes to the question, can my ex take my child away from me? If the court decides that your child will be better off living with your ex then, yes, it can order that the child be taken from you. However, even then the court would normally expect that you have regular contact with your child.

What to do if the other parent takes the child

Sometimes, as we have said, a ‘non-resident’ parent may seek to take the law into their own hands, by taking the child from the other parent, or perhaps by refusing to return the child to the other parent after contact.

What should the parent with whom the child lived do in such a situation (assuming they think the child should live with them)?

The answer is to make an urgent application to the family court for an order that the child be returned to them.

And such an application will be determined by the court in exactly the same way: by reference to what is best for the welfare of the child.

And as mentioned above, one of the factors that the court will specifically consider is the likely effect on the child of any change in his or her circumstances. Accordingly if, as may often be the case, a sudden move from one parent to the other is considered to be bad for the child’s welfare, then the court may well order that the child be returned to the parent with whom they were living.

How We Can Help

Whether the other parent has taken your child from you or has applied to the court for an order that your child live with them, you should take urgent legal advice. For more information, see our Child Law Solicitors page. In the event that social services are involved in your case, please see our Child Law Involving Social Services page. To contact a member of the team, please visit our Contact Us page.

Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child law, and arbitration.