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Applying to change a residency order.. Any advice?

(70 Posts)
troubledmum1234 Sun 04-Aug-13 15:55:08

Without the huge (mainly boring) back story and events leading to where we are now the situation that I need advice on (please) is:

My ex and I have a shared residency order. Exactly 50/50 residency, alternate weeks. Children are both young, one in primary one due to start this September. Residency order was made Jan this year, so 7 months ago and I want to change/add a few bits. I will be representing myself as can't afford any more legal fees. Can anyone have a look at the below points I plan to put into my application and let me know what in their opinion is reasonable or give any advice with regards to what I plan to request the Judge order on. If any sound pointless, or you think I have no chance, please be brutally honest with me.

1. When the current order was put in place (by consent) I asked at court for the ex to agree to slightly change the residency pattern so the children weren't with us for full "alternate weeks" and instead had a midweek overnight with the other parent. Ex wanted a clear 7 nights at a time, his solicitor stated for him that he had changed his work hours and couldn't have them at all the weeks they were with me anda also said we lived too far apart (15miles) as reasons to the Judge. The CAFCASS officer agreed that usually for small children regular and often is best but as this was the only point we disagreed on they advised the Judge for now we should leave it as full alternate weeks with each parent. The Judge asked for us to meet in mediation and discuss and this is written onto the undertakings in the Order.

Since the Court hearing I have moved house so I am now very close (3 miles) to ex's home, my solicitor has written to him regarding midweek overnights and his work rota as April would have been the time he could have changed it if he wanted to, but we had no reply. I've also got myself an FM1 form from the Mediation Service as he refused to attend mediation despite a Judge advising us to specifically to discuss this issue. Do you think this is enough for the Judge to now order a slight change in residency pattern. In my opinion the children would be happier with seeing us both more frequently, they seem to struggle with a whole week at each home and take days to settle afterwards. They are also really missing their half/step siblings during their full weeks away. Do you think this is enough to get a Judge to agree to my proposals of changing the residency pattern slightly, so it's still 50/50 but the children not spending so long apart.

2. I have found out from the school that the eldest is being late constantly on his weeks with ex. Not just occasional, 2-3 days late for school each and every week, from the school report over the last few months he has 50% lateness the weeks he is not with me. I've contact the ex by email to discuss this, offered to change things to help him if he is having problems with the school run, even offered to drive to his and collect them school mornings so I can take them, all ignored. It seems to be the same 2 mornings every single week that he is taking him in late. Can I do anything about this? Can I ask a Judge to add into the residency order that the children (youngest also starts school in September) must be taken to school ontime regularly unless something unforeseen happens and ask that if this doesn't happen I have the children those two nights (was thinking ex could have them for the evening and drop them off to be for bedtime) to ensure their education isn't negatively affected. Or will a Judge see lateness to school as a petty thing (even though it's so regular?)

3. Our order states alternate birthdays and Christmases, but neither of us thought about New Year's. As the alternate weeks work out, all New Year's are with ex for the next 5 years. We both have large family parties and it's a big family gathering/reunion. I would like the ask the Judge to add "alternate New Year's Eve's" into the order alongside Christmases and Birthdays, would this sound reasonable?

Am I being petty and pointless? I hope not, it's really important to me and the children that we see each other more regularly, I just hope a Judge agrees this times now I have jumped the hoops the last one asked us to.

THANK YOU!

youarewinning Sun 04-Aug-13 16:10:56

I have no experience of court orders as have full care of my DS. We did have an agreement that was midweek (eve or night) and weekends but XP kept pulling out, so tried alternate weekends and then just Sunday daytimes.

We have nothing now sad

From a parental and personal POV I think alternate weeks and birthdays etc sounds hard on the children. Although in theory I agree 50/50 is a great arrangement as the children get both parents and parents share the care but it must be hard for the children to do 1 week somewhere and a week somewhere else - where in your case it seems the rules are different (eg your ex doesn't get them to school on time) I think the idea of a midweek evening or night sounds great.

What do the children want? Are they able to express that?

I am a fan of main residency with lots of time with other parent.
For example M-F with RP. F eve til M am with NRP, or Midweek night, S-Sun with NRP, or F eve til Su am with NRP.

The agreement you have now works best in that you each get a weekend with the children which I know is a downfall or weekend contact for NRP.

I think if it's not working then you have every right to state it's not working and state concerns and the reason you think why. I also think the fact your XH refuses to engage needs to be addressed. Especially as you have 50/50 care.

Good luck - you sound entirely reasonable to me. brew

mumtobealloveragain Sun 04-Aug-13 16:31:18

Aw thanks winning, it's nice to know I sound reasonable from a parent's point of view! smile

I stupidly agreed to alternate weeks 2 years ago when my ex and I had lots of problems and the constant shouting (him) when the children moved from one home to the next was upsetting them, so we agreed it as a temporary measure. In hindsight, I now know that once something is the norm "status quo" courts seems to like to stick to it and it is hard to change without a very good reason. I can't "prove" or evidence on paper that the children would be happier with more frequent seeing each parent, I just know they would.

I would love to have the children ALL the time, but they need to spend time with their dad, it's good for them and they enjoy time with him, so I would never try and stop or reduce it for my own personal selfish reasons. However, I can't have them going into school late all the time. The eldest is quite shy and quiet and it upsets him (he's told me) and he gets a bit nervous school mornings here and now I know why. Until I saw his school report I had no idea ex was taking him to school late 2-3 days a week every week.

mumtobealloveragain Sun 04-Aug-13 16:32:27

It's OP by the way! I name changed earlier for a happier sounding name and forgot! I am the same person! smile

WeAreEternal Sun 04-Aug-13 16:42:24

I think your points all seem reasonable, if anyone is going to be seen as petty I think it will be your ex for just blatantly ignoring any attempt to resolve the problem.

ChinaCupsandSaucers Sun 04-Aug-13 16:55:26

OP - I hope you've made a complaint to the school?

They must have been talking to Dad about the lateness (the frequency would mean they'd have to by law), and given that you are both legally responsible for their school attendance -regardless of which parent the DCs spend the night - to exclude you (on his say-so?) is very, very poor practice on their part.

There was a similar post a few months ago about changing a residency order (that was a 50:50 too, it's good to see they are being awarded more often by the court nowadays) and I seem to remember the advice was that it was unlikely to be changed a matter if months after being issued, because courts allow parents a 'settling in' period?

McKenzie13 Sun 04-Aug-13 18:07:18

Hi troubledmum.

I would err on the side of caution when making a fresh application to the court. I usually advise people to wait a year before making another application.

In your case I would make sure that you have evidence that the children are late on his watch. This is easily obtainable. The school are usually reluctant to get involved but they are normally happy to provide this, but probably no more.

Out of interest does your previous order have anything in the recital about the distance? If there is the fact that you've moved now only 3 miles away would be a factor and it's something that you can take back to court.

Aside from that I think you will need to show that the children are not coping with the current order and quantum of contact.

As for the residency order itself, you are arguing against the status quo so I would. The RO itself is a label so I would keep the SRO as it...for now... and argue for the contact of time. If you can swing the contact of time in your favour then put the cherry of a Residence Order in your favour.

So, in short, quantum of contact first, Residence Order 2nd.

Hope that helps.

mumtobealloveragain Sun 04-Aug-13 18:12:41

Thanks Eternal. I'm hoping the Judge will see I have done all I can to make things as easy as possible for the children (we've moved house, solicitor contacted him to try and arrange/discuss the issue AND I did what the Judge asked and went to mediation but he refused (I have the FM1 form to document this) and that alone cost me over £100 in total.

ChinaCups, yeah I think 50/50 is becoming more popular, gone are the days of every other Sunday at dad's house I guess. I totally agree with shared residency as long as both parents are fit to parent and the children are happy. Ex is just so stuck on alternate weeks and I just don't think it's right.

I;m not sure about the school lateness thing really. I got the attendance report on the last day of school, so I have not had chance to speak to anyone there. It's crystal clear and looking through it over the past 3 months our eldest has been late exactly 50% of school days he is with ex. The school (or ex) have never mentioned it and upon speaking with my son he says ex told him not to tell me he is always late. The school are very good in ensuring we both get informed and updated on school issues - they have a copy of our residency order and know about our alternate week arrangement, so I don't think they have picked up on it at all.

I never take him in late, so I guess his 100% on time attendance with me "dilutes" his 50% lateness with EX making it 25% lateness overall, which isn't as bad. Still more than 1 day a week. I have no idea why he is being late all the time, he has no other children to sort out and only lives a 5 min drive from school. I'm also fuming that I've contacted him about it, offered my help in any way I can and still he's ignored it. Next term both children will be at school so both being taken late 2-3 times a week is just awful sad I just hope the Judge agrees that it's just not on!

mumtobealloveragain Sun 04-Aug-13 18:25:12

McKenzie - thank you also. To answer your questions...

- The residency order was "by consent" and states "there be the liberty to either party to restore the matter to court on 7 days notice to the other party until 11th Aug 2013". Does that mean I wouldn't have had to make a fresh application? I assumed this period of leave to return was to give us chance to discuss the issue of midweek overnight contact in mediation, but given that he refused (I have no idea why, it's written into the order's undertakings that we both agreed to attend) I'm hoping that's good enough reason to return it to Court? I won't get the application in within that time now though, I need to wait until pay day on 15th aug to have the £175 application fee- so do I just apply with a new C100 for a change to the residency order.

- I am not going to apply to change it from a shared residency order to a residency order in my favour. I have no reason to and believe shared residency is best for the children and shows each parent as equal in their eyes too. I am purely arguing to change the pattern of care to roughly keep alternate weeks but with a overnight visit in the middle of each week to break the weeks up. Failing that (as ex says he can't have the kids due to work on "my" weeks) I would like the extra 1-2 nights from "his" weeks to ensure they get to school on time as of next term.

- The school provided me with a very clear record of attendance - a 1 page spreadsheet that shows every school day and whether he was late or not. I've highlighted the alternate weeks and it is visually very telling. Definitely 50% lateness to school, regulalrly 2-3 days a week on his week. BUT he is attending school, albeit late a lot (between 5-25 mins late each time it seems) so I'm wondering if this is enough for a Judge to order in my favour.

- Other than the print out of lateness from school I have no idea how else to prove/document that the children would benefit from my proposed changes. Being on time to school is the obvious one, but I think it would help them settle quicker in each home, be better for them than spending a week away at a time from their half/step sibling etc. That sort of thing can't be made into tangible evidence and the children are too young to speak for themselves sad

brdgrl Mon 05-Aug-13 01:20:04

Mum, is it not your stepchild who is starting school in September?

Are you posting this about your stepchildren and their mum, rather than about your own children and your own ex? I think that would make a lot of difference to the advice you are given.

mumtobealloveragain Mon 05-Aug-13 21:33:18

Oh if only things were that easy Brdgrl. I have a child starting school in September and so does my partner (my DSS). They are actually starting at the same school albeit different classes, same school as my eldest and my other DSS are already at - so that should be interesting. He also has another child (my other DSS) and I have two other children (only one with the same dad as my youngest) and we are expecting a baby too!

You couldn't get more Jeremy Kyle if you tried! (Although we aren't, promise!)

ChinaCupsandSaucers Mon 05-Aug-13 22:00:27

Blimey!

I'd be tempted to leave things as they are and avoid a midweek evening in the mix - it's unlikely to be that detrimental to them in the long run when you consider that with the amount of running around you're going to be doing for all those primary aged DCs (I assume your DSC are all with you 50:50, too) it's inevitable that there will be occasions when you physically can't get them each to their individual play date, party, activity or evening with Dad/Mum - especially once your baby arrives!

mumtobealloveragain Mon 05-Aug-13 22:59:30

Thanks for the reply ChinaCupsand Saucers! Yeah "blimey!" is the usual reaction we get. smile

Logistically things are sometimes a little difficult, but we've worked it all out and we manage (school mornings as of September are going to be military style) Luckily we live close to the school now and they are all at the same school (will be as of September) and it'll just be the baby at home. Plus I don't work so I do lots of running around and dropping offs. They are all here 50/50 my DC are here alternate weeks and DSC are here on a complicated 50/50 rota a few days here and there.

The midweek nights will hopefully not make things harder, we will often be doing the school run for DSC that day anyway.. plus a week is just so long not to see them for sad

ChinaCupsandSaucers Tue 06-Aug-13 07:29:09

Thing is, now you've explained the background, I can see there's a lot of ammunition that your DCs dad could use in court if you forced the issue and (I'm not a legal expert) it might backfire on you.

Based on what you've described, I have met some solicitors who would advise your ex to question your judgement in court (effectively character assassinate you based on the Jeremy Kyle-esque life) and who would question the DCs emotional wellbeing in a family of eight DCs, arguing that they would get more quality parenting time, their own bedrooms etc with their Dad (does he have other DCs?).

If you could be sure the court case would only address the issues you want to raise, then that's one thing, but my understanding is that if you take the issue before a judge again, your ex could challenge everything that's currently in place.

mumtobealloveragain Tue 06-Aug-13 15:24:15

Thanks for the honest reply China! smile

Aside from us having more children in the house than my ex does, I don't honestly think he has any "ammunition" against me, aside from what he wants is to keep the current arrangement ie the status quo and it's me that wants to change it slightly - that seems to always be the harder thing to do.

We definitely don't have a Jeremy Kyle - esque lifestyle, honest! - sometimes I make that joke just because it's hard to all explain and in writing sounds a bit awful!

My ex doesn't have any other children, however he does work full time and I don't work at all, so the amount of "quality parenting time" is arguable. We also don't have 8 children, There is 5 now and 6 when the baby arrives - I have an older child and my 2 with the ex, my partner has his 2 (they are only here 50% of the time that my 2 are here) and we will have the baby. I am a SAHM, we have a decent house, my partner works hard, we have enough bedrooms etc (and not a single staffy, benefit claimant or alcoholic relative in sight!)

You are right though, I know that to try and change one thing may result in the Judge making an order that suits neither me or my ex. However, I have thought a lot about this and now I now about the school lateness issue I think it's worth it. (I hope).

glasscompletelybroken Wed 07-Aug-13 11:35:08

I think your children would cope better and settle into the routine more easily if you were more positive about it. It sounds like you didn't want this alternate weeks system in the first place and are determined to prove that it isn't working.

I'm not sure why you think your ex would want to attend mediation as you have a court order in place already and you just need to allow this to have time to develop into an established routine. As it is you who wants to change it, any mediation would just be about you trying to get your own way.

You don't say that the children are unhappy, or that their needs are not being met. Being late for school is hardly abuse is it?
There may be things that happen in your house that your ex is not happy with too - you obviously have your differences as you are not together any more. If you both have equal responsibility then you have to let each other get on with parenting in your own different ways.

This sounds like it's much more about what you want tbh. Just try and adopt a more positive approach - it is excellent for the children to have 2 parents who are equally involved.

I do accept that my view on this is based largely on my own experience of my DH who has 50:50 care of his dcs with his ex and has a constant battle with her trying to change things when really it is working fine and she just can't bear to leave it alone. It is hard sometimes for dads who are working full time to cope with this type of shared parenting and if he has managed to work out a system with his work for doing this then all credit to him.

NicknameTaken Wed 07-Aug-13 13:46:38

I'm not a solicitor, but I think that what you are asking for is reasonable. Your ex bringing your ds late to school on a regular basis is an issue. Given that you have this deadline of 11th Aug, I think it's worth applying to court. In fact, I'd ring the court and explain that you can't pay the fee till 15th. You have this small window of opportunity to get things really right for your dcs, so I'd use it.

mumtobealloveragain Wed 07-Aug-13 19:12:52

Thanks for your posts and opinions, very much appreciated!

Oh I have been as positive I can about it towards the children glass, although I don't think any parent can be overjoyed about not seeing their children for a whole week.

I don't expect my ex to want to attend mediation, and to be honest, I don't particularly want to either. The Judge suggested we make the residency order alternate weeks and had it written into the order that my ex agreed to attend mediation to try and come to an arrangement over the midweek overnight stays. He has now refused to attend, despite telling the Judge he would.

They are not being abused and are not particularly unhappy, but I do feel they would be better off and happier with more regular contact.

I also feel strongly about my child being taken to school late 2-3 days a week. I think most parents feel that is unacceptable. Taking children late to school is not "parenting style" I'm not complaining about their bedtimes or what he chooses to put into their lunches, we both agree to disagree on many points of parenting, but this isn't the same in my opinion.

I agree it's hard for any parent working full time to have 50/50 residency and all parent deserve credit for their hard work. However, I don't think him working should mean my child has to be late for school all the time. I'm hoping a Judge will agree. Having said that he's late for school sometimes when ex isn't working too, so I have no idea what the reason is.

NicknameTaken Thu 08-Aug-13 09:07:13

I believe a judge would agree about the being late to school issue. Slightly different in my case, but my ex was keeping dd off school the occasional day on spurious grounds (claiming she had a cold when she hadn't so much as a sniffle). She was only in early years, but my solicitor sent a warning letter to him and told me that a court takes interference with education seriously.

I agree with you that midweek contact sounds like it's in the best interests of the dcs.

You have this window of opportunity, and if you're self-representing then you won't be throwing away huge sums of money. It sounds to me that you are thinking of the dc's best interests - I don't get the impression it's about point-scoring over your ex. The midweek contact is something you have raised before and your ex hasn't complied with the steps ordered. I think you are perfectly reasonable in bringing this back to court. Whether or not you "win" all your points, I can't see a major downside to having this looked at.

ChinaCupsandSaucers Thu 08-Aug-13 09:16:58

How does midweek contact resolve the lateness issue though?

Presumably, if your ex isn't capable of getting the DCs to school on time regularly, you will be proposing a care and contact split, in which you take responsibility for the school runs and he has contact at weekends and holidays?

There is a risk that you will be seen as malicious in court if you raise issues (such as school lateness) but your application doesn't propose a solution to it.

NicknameTaken Thu 08-Aug-13 10:07:52

I disagree, China - the court could require the ex to give an undertaking to take his ds to school in good time.

The midweek contact doesn't resolve the lateness - they are two separate issues for the court to consider. I don't see a problem with that.

mumtobealloveragain Thu 08-Aug-13 11:14:56

That's interesting to hear your experience with school issues Nicknametaken. I appreciate being late for school is nowhere near as bad as not being taken at all, but it's so regular I hope they will see it as an issue.

China- You are right, it won't resolve the lateness. They are two entirely separate issues and I have no idea what to propose regarding the lateness and how to stop it. The only way is, as yousuggest, I ask for school days to be all with me and they go to his weekends and holidays only but I think that's such a drastic change it will look like I'm being unreasonable.

However, one extra night with me during the week means one extra day with her that they aren't taken to school late, if that makes sense.

Perhaps I could ask the Judge to get ex to agree to have them in school on time and have it added (like nicknametaken suggests) as an undertaking in the residence order. Then if he still doesn't, I could ask for it to be reviewed and then say I have no other option but to ask a Court to award me school days. However, I wouldn't really want the children not to see him for the whole school week so he could still have them perhaps, just bring them back here for bedtime and so I can get them to school ontime the next day.

It's just so hard to know what to push for and what to let go, without disadvantaging the children in order to look "reasonable". Plus I haven't really any idea how it all works, so I'm just guessing and trying my best for the kids I suppose.

ChinaCupsandSaucers Thu 08-Aug-13 11:35:23

However, one extra night with me during the week means one extra day with her that they aren't taken to school late, if that makes sense.

With her? I assume you mean with him as its their Dad you are talking about - or is it your DSC mum you are actually talking about again?

mumtobealloveragain Thu 08-Aug-13 12:11:16

No I mean with him, it was a typo! Thier dad is definitely a man!

I'm not sure why you think I would be asking about this for my step children's mum? Why would I want her to have them more than she does and us less?

glasscompletelybroken Thu 08-Aug-13 16:49:18

I'm sorry but I just think it's a massive over-reaction to go back to court to change a residency order because the kids are late to school sometimes. You have no real issue with what is in place except that it doesn't suit you and if this was a man writing this and saying that the childrens mother was getting them to school late some of the time and he wanted to drag her back to court over it he would be completely flamed.

Give the guy a break. If there is a real concern with lateness then the school will be writing letters about it which both parents will receive. If this happens then your ex will have to get his act together in the mornings but until it does just get on with parenting them when the dc's are at yours and let him get on with it when they are at his.

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