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Sabotaging current 50/50 residency by resigning - will it work?

(10 Posts)
Tewa Thu 21-Mar-13 15:25:28

If the order was a consent order and she agreed even if she didn't want to (i.e. her solicitor, the judge, CAFCASS, etc. lent on her) it is still a consent order. If the order says `by consent' that's that.

Unless I am mistaken it sounds like the judge wasn't completely convinced by the CAFCASS officer's recommendation that contact be 7 days without any contact. To be honest though 7 days without seeing the other parent is far from unknown however (think `every other weekend' dads).

The fact the judge has ordered mediation and said if she refuses mediation or isn't helpful he can apply back to court is a bit of a hint if he framed it that strongly too. On the other hand - bear in mind that if you opened a new case, etc. all previous orders can be ripped up...is it worth pushing it too far?

brokenbiscuits1 Thu 21-Mar-13 15:11:09

However, the Judge did order them to mediation to discuss the issue of midweek overnight stays each week. DP has been advised if she refuses mediation or it proves unhelpful he can apply back to court and hopefully get a more sympathetic CAFCASS worker as generally they don't agree with young children not seeing a parent for such a long time, we hope this is correct.

brokenbiscuits1 Thu 21-Mar-13 15:09:13

Perfect! Just what we wanted to hear, so thank you!

The only thing she refused to agree on at court was a midweek overnight each week with the other parent. The children currently live with us Mon-Mon for 7 days and then with her for 7 days, and so on. DP feels it's too long without seeing the other parent. She disagreed (at the time she claimed her work hours stopped her having them midweek on "our" weeks and that the children may think she loves them less if they had a midweek overnight with us and not with her) and we were very surprised that the CAFCASS officer agreed with her and his words to the Judge were that week on week off seemed to be very "clear cut" and "simple" for the children and that he saw no problem with the children (they are only 4 and 6) not seeing the other parent for a whole week. hmm

Until 3 weeks ago the children did not even speak on the phone to the other parent, so no contact at all every 7 days. DP asked the Judge to at least advise phone calls and their mum would only agree to 1 midweek phone call per week. These aren't going to well, her phone call to them this week was her asking them "who's there with you?" "Has daddy left you home alone with brokenbiscuits?" and when he called them for his phone call she took over the conversation, told them what to say and after about 3 mins told them to say goodbye. Plus at 4 and 6 they really don't want to speak on the phone, they just lose interest so quickly. sad

Tewa Thu 21-Mar-13 14:30:13

As the order was only made 3 weeks ago she has very little chance of taking this matter back to court. As a general rule it'd be a year before her application would carry much weight unless things drastically change (and handing in her notice doesn't really count).

There is no basis for getting `first refusal' when it comes to care - the court cannot and will not make an order on that basis. A child in the care of a parents is assumed to be cared by a suitable person unless there is cause to believe otherwise. As you say if they agree great but that's about as far as it goes.

brokenbiscuits1 Thu 21-Mar-13 14:10:47

Thank yo so much, I've just read your responses to DP and he feels much better.

We had read about parents with shared care agreeing on "right of first refusal" ie. if they are not personally available to look after the child the other parent should be given 1st choice before that parent looks to find a babysitter, but we hope that this is more a mutual agreement people make rather than something ordered by court.

It was a by consent order and until this point she has always been happy with 50/50 as she's been in full time work. Bu very recently, I mean the order was only made about 3 weeks ago! I think she's seeing it as a chance for an easy time not having to work and having the kids more, DP pays maintenance and she claims benefits to get by. But you are right, the kids also need time with their extended family, their grandparents etc. It would also mean they have not see their friends around here as much etc. In short it would be really tough for everyone and disruptive for the kids too.

The children are young (4 and 6) so we know their views aren't going to be considered at this stage.

Tewa Thu 21-Mar-13 09:52:53

She's making the mistake in assuming the time the children spend at your home is for his benefit. It's not - it's for theirs. Furthermore it's not just their time with him. It's for their time with their `paternal family'. Which includes siblings (step AND half varieties), you as their stepmother and their extended family including aunts, uncles, grandparents, counsins, etc.

She'd be making a mistake in court to say `If they're not with him they should be with me.

You also say the order is by consent. Which means she agreed to it and by doing what she is suggesting she's effectively saying `I was acting in the best interests of the children when I agreed this a few months back...and now I've decided I wasn't acting in their best interests then but I am now'. It's a self-contradictory stance and certainly one I would point out in court. The fact that the order was by consent strengthens your argument.

How old are the children incidentally? Their views could be taken into account.

brokenbiscuits1 Thu 21-Mar-13 09:10:21

But yes, you are right, the children's best interests are what counts not his or hers. But she can obviously jazz it all up (she can afford a very good Barrister and we can't) to make it look like she is doing what's best for them.

brokenbiscuits1 Thu 21-Mar-13 09:09:05

Thanks for your reply. What I meant was they have a shared residency order which states the children live with us and her 50/50. It wasn't ordered by the court as such it was agreed between them and put into a "by consent" order.

However, she now seems to be implying she is intending to return to court and ask for a greater share of residency based on the fact that she will be able to care for them personally and DP will be working (as always and as she always has until now) during some of his time with the children which means they are with me and she thinks that they would be better off with her even though this is their home too and their step/half siblings are here, it's not just about spending half a day with me is it.

She is talking about him having every other weekend and one midweek overnight the other weeks, which is 3 nights out of 14, a far cry from the current 7 out of 14.

He's just worried. It's always in the back of his mind that some Judges are still very old school and tend to favour the mother and her wishes rather than the fathers.

Tewa Wed 20-Mar-13 22:55:43

What do you mean by a `50.50 residency order'? Residence status and the level of contact are unrelated.

Either way what was ordered at the hearing `very recently' was done because it was in the best interests of the children and not based on Mum's employment status. If she changes her employment status that doesn't affect the childrens' best interests.

If she really wanted to push it she could conceivably write to the court for up to a year after the final hearing (or apply for a variation if it was longer than a year back) to ask the case be reopened but she'd have to explain why - and losing her job wouldn't count.

The childrens' best interests have nothing to do with when or where Mum works in short.

brokenbiscuits1 Wed 20-Mar-13 22:04:44

Long story short, DP and his ex have 50/50 residency of his two children.

They both work full time and have adjusted their hours to better suit school runs etc. During the DSC's time with their mum she uses paid childcare for the times she is at work and during their time with us I look after them when DP is at work.

Anyway, it appears his ex is going to resign from her job as she is currently under threat of being dismissed for various reasons. She has mentioned that she might not look for work and be a stay at home mum and that this will mean she is available to have the children more and has said she will take it back to court if he doesn't agree.

Anyone experienced this? Will a court change the very recently made 50.50 residency order just because she has decided not working is a better choice, if so then surely this is a common tactic used by RP or NRP to gain / keep majority care.

sad

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