Residency order - how does it work?

[rugbydent]

Hello, I have previously posted in the relationships thread and have been advised to seek legal advice.

To give you some background: I've been married for 14 years. After a stormy three years in which I have found it almost impossible to continue living with OH I have decided to move out taking DS1 (12) and DS2 (8) with me.

I can forget 'amicable' separation ? it?s a vain hope in the circumstances, and I genuinely believe his family will punish me in any way they can once I announce my intention to his parents that I?m leaving the marriage, so I haven?t discounted the possibility that it may be necessary for me to take my children and leave quickly - to secure my safety.

So, to give you some background, for the first 10 years of my marriage, I lived with the in-laws. During that time, and throughout our marriage, I?ve had to endure their interference and emotional blackmail, including FiL's alcoholism and volatile behaviour. FiL has severed ties with most of his family, including his brothers.

For years, I tried to persuade OH to move out, but as the only son, he felt responsible and refused to move. We finally found a beautiful house within the local neighbourhood and big enough for us ALL to move in to, but when we announced our intentions to move, in-laws decided they didn?t want to come with us, much to my relief. We moved out in 2008 and his parents didn?t speak to me for several weeks.

You think moving out and being in our own place would?ve helped our relationship, but it hasn't. As things currently stand, I cannot sustain everything: work, kids, his insecurities and paranoia (he?s inherited much of his father?s traits) and his family ? it?s pushed me to the brink; hence the urge to escape and move away.

I want to provide a better life for the DC and be closer to them. My work commitments and OH's family demands mean that I'm often away from them and when I am home, MiL takes over by cooking every evening which means we have to go round to inlaws' house. At the very least, I should be able to provide some structure and routine for the DC in my own home, but I feel I have no control. I want to change that, and I am talking about moving 40 miles away; not 400!

I'm now in a better financial position to be able to move and provide for the kids alone. I?m fed up of the current commute to work, hence move to be nearer to work and to continue being the active parent. I'm blessed with 2 great young boys who I want to spend time with; I try and do my best spinning a lot of plates in my professional and personal life while trying to get, and keep, the right balance both in and between them.I just want to be able to provide a happier home where there are no arguments, tension or bad-tempers being played out.

OH plans to fight for sole custody of the children. It?s daunting and inconceivable to think I stand a chance of losing the kids; hence my question.

Can I apply for a residency order and what would I need to present as evidence? Arrangements for where I'm going to live, schools, childcare, etc?

OH will claim it?s in the best interest of the DC to stay with him, because they?re settled in schools and have a network of family and friends around them. He is currently unemployed (has been for 5 months) and is unable to claim benefits because he is self-employed. When he is in work, his hours vary from 6am-6pm. My in-laws have taken care of DS2 - this is through no choice of my own.

What are my options? I'm terrified that OH will win sole custody, because he would claim his family would support the upbringing of the children, and I don?t want them to live with his parents again for the reasons I?ve explained above. OH would even claim to become a stay at home dad, if it meant he has sole custody of the children, but I'm not sure how he would support them financially.

It?s really hard and overwhelming, and would appreciate any legal advice and next steps.
Thank you

[STIDW]

Using the internet to find out information is fine but it isn't a substitute for legal advice.

The outcome of many residence applications is shared residence. A court would consider who is best placed to spend time and care for children rather than who has the biggest income. What is the established pattern of work and child care at the moment? Who does the school runs, looks after the children if they are sick, takes them to doctors etc?

[rugbydent]

Thanks for your reply STIDW. I appreciate these threads are not a substitute for legal advice - opinions are fine too.

The established pattern of work and child care is as follows: we both worked full-time, until January, when OH was hit by the recession. He's been unemployed since. I still work full-time. 3 days from home, when I do the school run, etc. I go in to the office for meetings for 2 days. During this time, my in-laws take care of the children.

I am able to take time off and arrange my 'working from home' days to suit DC's school/out-of-school commitments, such as after school clubs. However, due to increased work responsibilities, I would like to be able to move nearer to work in order to reduce the commute which would enable me to spend more time with DC, particularly on the days when I have to attend meetings. At the moment, the commute is a 4hr round trip. Would the courts factor in 'work commitments/promotion' as the purpose of moving DC? it would certainly allow me to continue being an active parent.

[STIDW]

The problem is your husband has the same responsibility and rights as you to decide important issues such as which school the children should attend. A dim view is taken of parents who unilaterally change the status quo. Of course there are serious cases of DV that justify disappearing, but less serious abuse can be difficult to prove and even when a court finds there has been low levels of abuse any harm children suffer is balanced against the harm caused by interfering with their attachment to a parent.

If you both worked full time and shared care of the children the courts might decide that 50:50 shared care is appropriate. This happened to someone who moved 40 miles away recently and she was ordered to do all the traveling so she is exhausted. Alternatively the court may decide the lesser of the evils is for the children to stay with your husband so as not to disrupt the children's sense of security by moving and changing schools, or their established bonds with friends and extended family.

It might be worth considering not moving so far away, at least until the arrangements for children have been sorted so that you live close to the school.