Residence of the child in case of separation of parents
Verified 13 October 2023 - Directorate for Legal and Administrative Information (Prime Minister)
Separating and wondering how to arrange child care? Do you want to obtain custody of your child so far entrusted to the other parent? We present you with the information you need to know.
The child's residence, also called child custody in everyday language, means where your child minor go live in the usual way.
FYI
The judge cannot determine the residence of an adult child.
2 hypotheses are possible:
- Your child may reside in the home of each parent alternately. In the most common alternate care example, the child resides with you for one week and the other parent for the following week.
- Your child may reside in the usual capacity at the home of one of the parents. In this case, the child sees his other parent during the rights of access and accommodation (e.g. 1 out of 2 weekends).
FYI
Exceptionally, your child may be entrusted to someone other than his or her parents.
It is up to you as a parent to choose your child's residence.
However, if you don't agree, the family court judge makes the decision.
The minor child never determines his or her place of residence, regardless of age. However, it may give its opinion, for example by requesting to be heard by the judge.
Video: Can a 13-year-old decide to live with his or her father or mother in case of divorce or separation?
Vidéo - Can a 13-year-old decide to live with his father or mother in case of divorce?
SMS Conversation
- How's your parents' divorce going?
- Not great...
- My brother doesn't want to live with my father
- Ah yes, anyway!
- Yeah...
- My father is super angry but my brother is 13 years old so it's him who decides
Can a 13-year-old decide to live with his father or mother in case of divorce?
No, in the event of divorce or separation, the child cannot choose to live with his or her father or mother.
Up until the age of 18, it is the parents who decide or the judge if the parents cannot agree.
However, in the event of divorce or separation of his parents, if a judge is seised, the child may ask to be heard. He must write a letter to the judge to be heard or one of his parents can make the request for him. If the judge feels that the child is mature enough, he or she may hear the child or have the child heard by a professional. At this hearing, the child may be accompanied by a person of his or her choice or by his or her lawyer.
The judge's decision does not always follow the child's wishes, but he must take them into account and explain his choice. In all cases, the judge must decide in the best interests of the child.
For more information, see:
Separation of parents: residence of the child
- Divorce, separation: can a child be heard by the judge?
The procedure differs depending on whether you are in the process of divorce or not.
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You're getting divorced
Divorce by mutual consent
You and the other parent set the residence of your child amicably. Your respective lawyers can help you reach an agreement.
The operation of your child's residence is formalized in the framework of the divorce by mutual consent written by your lawyers.
Judicial Divorce
Within the framework of the judicial divorce proceedings, the Family Court Judge (Jaf) determines your child's residence based on your requests and those of the other parent.
You can agree on the residence of your child even if it is a judicial divorce.
Other case
Out of court (parental agreement)
You can set your child's residence amicably without going through a family judge.
You have the option to use the family mediation to reach an agreement.
It is best to formalize your agreement in a parental agreement signed by you and the other parent.
You can use the following parental agreement form to establish the residence of one of the parents:
Model parental agreement - Residence and rights of access and accommodation
To establish alternate residence, you can use another form:
Model parental agreement - Alternate residence
The two models above include measures on parental authority, custody and maintenance.
Once the parental agreement is completed and signed by each parent, you can submit to the family judge for approval.
Certification is advisable to give enforceability at your parental agreement.
You can use a cerfa form to apply for registration:
Joint request for the approval of a parental agreement
The form must be filed or sent to the court of the domicile of either parent.
Who shall I contact
The lawyer is not obligatory to draw up and apply for the approval of a parental agreement. However, you can get the help of a lawyer for guidance in drafting the parental agreement.
In case of disagreement
You or the other parent can enter the Jaf: titleContent so he can fix your child's residence.
You can enter it using a form:
Application to the family judge (parental authority, right of access, maintenance...)
The form must be submitted or sent in the court of the place of residence of the parent who harbors the child.
Who shall I contact
The lawyer is not mandatory for this procedure. However, you can get the help of a lawyer if you wish.
Who shall I contact
Then you're called to a hearing following which a judgment is given.
Warning
As long as the judgment is not rendered, the child must be able to maintain relations with each of his or her parents. Every parent has a duty to ensure that the child's personal relationship with the other parent.
The child's residence, whether decided by a judge or by the parents, must first be taken according to the best interests of the child.
If a Jaf: titleContent is called upon to decide on the residence of the child, he or she shall in particular to take account of the following factors :
- Practices or agreements that parents have had so far
- Feelings expressed by the minor child during his or her possible hearing
- Ability of each parent to carry out their duties and respect the rights of the other parent
- Result of any expert appraisals carried out
- Information from a possible social survey
- Physical or psychological pressure or violence exerted by one parent on the other
FYI
The minor child discernable can to ask to be heard by the judge to give his opinion.
If your child usually resides at home, and you move, you must inform the other parent beforehand of your move.
In the event of disagreement following this change, the parent who so wishes may apply to the family court for a change in the child's place of residence.
As long as your child is a minor, his or her place of residence may be changed.
FYI
If you are in the course of divorce proceedings, your child's residence was probably determined in a court decision. In this case, until the divorce is pronounced, you have to go to your lawyer to have the residence changed of the child.
The procedure differs depending on whether you agree with the other parent.
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In case of agreement
You can set your child's residence amicably without going through a family judge.
You have the option to use the family mediation to reach an agreement.
You can use the following parental agreement form to establish the residence of one of the parents:
Model parental agreement - Residence and rights of access and accommodation
To establish alternate residence, you can use another form:
Model parental agreement - Alternate residence
The two models above include measures on parental authority, custody and maintenance.
Once the parental agreement is completed and signed by each parent, you can submit to the family judge for approval.
Certification is advisable to give enforceability at your parental agreement.
You can use a cerfa form to apply for registration:
Joint request for the approval of a parental agreement
The form must be filed or sent to the court of the domicile of either parent.
Who shall I contact
The lawyer is not obligatory to draw up and apply for the approval of a parental agreement. However, you can get the help of a lawyer for guidance in drafting the parental agreement.
In case of disagreement
If you want to change your child's residence, you can use the following form:
Application to the family judge (parental authority, right of access, maintenance...)
The form must be submitted or sent in the court of place of the parent who has the residence of the child.
Who shall I contact
The lawyer is not mandatory for this procedure. However, you can get the help of a lawyer if you wish.
Who shall I contact
Then you're called to a hearing following which a judgment is given.
Who can help me?
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House of Justice and the LawFor more information
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Exercise of parental authority by separated parents (art. 373-2)
Intervention of the judge in family matters
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