Who the children live with: what the law says

Article 373-2-9 of the French Civil Code places alternating residence and residence with one parent on the same footing. No preference by sex is laid down, and no preference linked to the child's age either.

The judge rules in the light of the child's interest, taking into account in particular the practice previously followed, the feelings expressed by the child, the aptitude of each parent and the results of any expert assessments conducted.

A frequent confusion bears on what residence entails. It does not alter parental authority, which continues to be exercised jointly after separation, under article 373-2. Important decisions (schooling, health, a move affecting the other's rights) continue to be taken by both.

The parent the child does not live with is therefore not a parent diminished in law. The same article recognises their right to be informed of important choices, and requires each to respect the child's ties with the other.

Judicial statistics show a very unequal distribution, residence being set mostly with the mother. This gap with the neutrality of the text is regularly cited as proof of judicial bias.

The reading calls for caution. In the great majority of cases, the arrangement adopted results from an agreement between the parents, which the judge endorses without adjudicating. What these figures measure is therefore first what families request, and only then what judges decide.

The available data show, moreover, that the rate of alternating residence is markedly higher when the parents agree than when the judge has to decide, and that applications for alternating residence brought by fathers succeed in a large proportion of cases.

A child capable of discernment has the right to be heard, at their own request or at that of a party, and must be informed of that right. No minimum age is fixed, discernment being assessed case by case.

The child is heard; they do not decide. The judge takes their view without being bound by it, and this distinction protects the child from an untenable position, that of having to choose between their parents.

One practical point deserves flagging. The interim measures taken at the start of proceedings often apply for a year or two, install a daily organisation, and the trial judge is then reluctant to undo what works.

What is decided in the first weeks therefore has a good chance of lasting, something many parents do not know at the moment they accept, to avoid a conflict, an arrangement they believe to be temporary.