Can a Wife Legally Take the Children if She Moves out prior to a Divorce?

In the UK, 93% of children whose parents have separated live with their mother rather than their father. As a result, many people tend to assume that mothers automatically have a stronger parental right than fathers. They tend to think that the children belong with the mother. Therefore, if the mother leaves the marital home most people expect that the children to automatically move out with her.

What the Law Says

In reality, the law does not support this commonly held view. Both parents should be involved in deciding where the children live. This is because of something called Parental Responsibility.

When a child is born the mother automatically has Parental Responsibility, and the father usually gets it by being named on the birth certificate, or by marrying the mother. Parental responsibility is a shared right and a shared duty of care that lasts until the child is 18.

The Children’s Act of 1989 defines who should have that right and what they are responsible for providing the child with. Top of the list is providing a home for the child as well as protecting and maintaining the child. Naturally, in order to fulfil this obligation properly both parents really need a say in where the child lives.

The Reality of the Situation

Unfortunately, this is too tenuous an argument to enable you to keep your children in the family home should your spouse leave. If your wife leaves, getting the children back under your roof is very difficult.

It is really, only possible if the children have been taken to live somewhere unsafe or unsuitable, such as a refuge, or if they are living with someone who is a threat to them. Otherwise, the police, courts and social services will not intervene. However, when you sit down to discuss custody the fact the children were removed from the family home without your agreement can be raised. If their removal was not in the best interests of the children it is important this is noted.

Seek Advice at an Early Stage

If you arrive home to find that your spouse has taken the children, try to remain calm and seek legal advice as soon as possible. How you conduct yourself now can either strengthen or weaken any future requests you make regarding custody. At Hylton-Potts, we have huge of experience of this situation and are more than happy to advice you about how best to handle the situation. We operate highly competitive fixed fees not terrifying solicitors’ hourly rates.