Shared custody and benefits/mantenence

[moosehead53]

Hi all,

I have joined Mumsnet today as my girlfriend is in desperate need of advice.

Below is an email she has sent to a solicitor (she is having a free half hour consultation but we are unable to afford legal help after this). If anyone has been in a similar situation we would be extremely grateful for your advice. Many thanks.

"I divorced in 2008. My ex husband and I had a shared residency (informal) agreement concerning our children who are now aged 13 and 15, my eldest child has asperger syndrome. I never wanted the shared residency but at that time I was very depressed and agreed in order to end the lengthy divorce proceedings. It is fair to say this arrangement has been tough for the children. I am now being relocated an hour away from our home town and am moving house to live there in rented accommodation. My ex husband was emotionally/ sexually abusive and still intimidates me. He is very angry about my moving plans and demanded a 'proposal' concerning the children which I will forward, with 2 responses from him. He works in the private sector and earns a substantial salary, whilst I work part time as a probation officer and have debts. He owns the 4 bedroom house which we previously jointly owned and the maintenance he pays has not been reviewed since our divorce. He is strongly proposing to have the children living permanently with him and wants the child benefit for both children and the DLA I currently receive for my son. He intends to stop paying maintenance which was agreed within the divorce settlement. Both of my children do not, categorically, want to live with him permanently. Obviously I do not want this either, but would hope to support them in whatever decisions they make and how they would like to spend time with us both. If I lose the benefits, and to a lesser extent, the maintenance, this will impact on my entitlement to tax credits and possibly housing benefit to supplement my wages, and I will be unable to afford to rent a property with enough bedrooms to provide a home for my children. I am very frightened as my ex husband does not like to lose and seems to be intent on making it impossible for me to have my children with me, even on a shared residency basis. I also have a younger child (not his) aged 6. Her father has not had contact with her for two years and had a restraining order imposed by the police against him concerning me and my children due to harassment/ abuse. This is another reason I accepted the deployment away from here, as he has continued to breach this".



There are other factors which I am reluctant to mention as we suspect my partner's ex-husband may be monitoring this forum.

Thank you in advance to any kind soul who has any advice.

SL

[STIDW]

This is a run down of the position rather than advice which is better coming from the solicitor when they know all the factors.

The first thing is there has been a change in the law and Residence and Contact Orders have been replaced with Child Arrangement Orders. CAOs determine where a child lives and/or with whom they have contact. Residence and Contact Orders made before the changes are treated as though they are a CAO. There are many ways of sharing care and shared living arrangements aren't necessarily 50:50 equal time parenting, they can be in different proportions. It is also possible for parents to live a distance apart and still share care.

If there is independent evidence of recent abuse such as protective injunctions or undertakings and your girlfriend is on a low income she may be eligible for legal aid.

Courts must give regard to the Welfare Checklist in s1 Children Act 1989 when making a decision about arrangements for children. The views of children are considered in light of their age and maturity and at the ages of 13 and 15 will carry considerable weight although they aren't determinative. The paramount concern is the welfare of children. I'm not saying it is the case here but sometimes when children live a substantial amount of time with both parents it is found less disruptive to their education and established friendships to stay with the parent who isn't moving away. Other factors will be your girlfriend's motivation for the move (and her ex's motivation for opposing the move!) and the duration of your relationship if your girlfriend is moving in with you.

As far as child maintenance is concerned it can be agreed in a Consent Order settling the overall finances on divorce but normally the court have no powers to impose an order for child maintenance or a variation. Either parent can apply to the Child Maintenance Service for a child maintenance calculation 12 months after the date of a Consent Order, the CMS notifies the courts and the Consent Order ceases to have any effect with regard to child maintenance a couple of months later. However if child care is shared exactly 50:50 the CMS cannot process a claim so the Consent Order remains in effect. Whilst a Consent Order remains in effect it is binding and enforceable.

Under CMS rules the parent in receipt of CB is nearly always deemed to be the parent with care entitled to receive CM and tax credits/benefits. If there are competing CB claims it is the DWP who investigate and make a decision.