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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!

ThatsNontents Wed 14-Aug-13 09:39:43

We didn't go to court (thankfully)

But we do the right of first refusal, it just seemed common sense.

Our children are older now and do what they want about contact.

mumtobealloveragain Wed 14-Aug-13 10:25:24

The issue I see with right of first refusal is (as biblio said) the affect it has on relationships with wider family. The children have in the past gone to my parents house for a night if I've gone out and have been to their dad's parents house for a couple of nights when he went away. Both of which wouldn't be right to stop as it's important they still get time for relationships with other family members. I don't think it would really work for us to be honest. It's only the two regular nights a week that they spend with his friend whilst he works that bothers me. Sea not a childminder has no kids and isn't related. So I'm free to have them and they are sat nearby in her house, and he won't agree to me having them for a midweek overnight.

A friend who's been through a pretty tricky separation and lots of Court hearings has said to me that perhaps what I am wanting to do is actually apply for a "Specifc Issue Order" relating to the school lateness. Speak to the school first still, but then make the application and attach the lateness report. Se (and I) aren't entirely sure how this works but apparently it's using the same form (C100) and the order (if granted) would run alongside our current shared residency order. Hopefully it could say that ex must get the children to school on regularly (or words to that effect but sounding better). This wouldn't address the midweek contact but id have to do that separately by applying to "tweak" the residency order. Perhaps that way it would separate the two issues. Does anyone have any opinions on this?

My friend has also mentioned perhaps money is his motovation for being so adamant on exaxtly 50/50 with no room for negotiation. Currently, there is no maintenance paid as we have 50/50 care. I'd be happy with that to stay the same even if I had them one extra night, would it be awful of me to say that to him? I'm sure he'll either be offended or pretend to be! But if it is his motivation it may help. I don't know...

bibliomania Wed 14-Aug-13 11:22:24

Without being a sol, the specific issue order sounds right.

Money might well be part of his underlying invitation, but it's a tricky one to address. If you mention the money staying the same, he might feel that to then agree to extra time is implicitly admitting that he was thinking about the money. I think you need to kind of slip it into the discussion in passing, as if you're not really aware of the implications. This might appeal to his vanity, that he is the Big Man with the Cleverly Hidden Agenda and he's pulling a fast one over you. [Disclaimer - I'm totally projecting on the basis of my ex!]

ChinaCupsandSaucers Wed 14-Aug-13 14:01:44

My friend has also mentioned perhaps money is his motovation for being so adamant on exaxtly 50/50 with no room for negotiation. Currently, there is no maintenance paid as we have 50/50 care

I doubt that is his motivation as I'm sure he's been adviced by his solicitor of the reality.

Assuming you are in receipt of Child Benefit, then it doesn't matter what you agree/decide between you, you could apply to the CSA and he will be liable for maintenance payments - which are adjusted to account for the nights the DCs are with him.

As for a specific issue order - I don't think it's likely that a court will order something that he has a legal obligation to do anyway. If he was proposing home schooling, or a change of school, then you could apply for an order to prevent it - but there is already legislation in place to deal with parents whose DCs are late for school - a specific issue order from the Family Court could undermine the legal process regarding attendance.

Collaborate Wed 14-Aug-13 14:10:27

Actually, if it is true shared care, neither parent will pay the other maintenance. It matters not that one receives the CB. See para 69 of this:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/220379/cmec-maintenance-calculation-regulations-2012-technical-consultation.pdf

glasscompletelybroken Wed 14-Aug-13 14:14:17

Collaborate - that is not our experience!

I still come back to the point that here is a dad who wants to have equal care of his children, has managed to find a way to organise this with his work, the children appear fine and the only small issue is occassional lateness at scholl which the school themselves have not highlighted as an issue.

This is all about you.

ChinaCupsandSaucers Wed 14-Aug-13 16:09:44

collaberate the new CSA formula are only being applied in very specific cases though - new cases involving 4 it more dCs with the same parents is the advice CAB gave me a few months ago!

Collaborate Wed 14-Aug-13 17:03:58

Chinacup - I think you're right. It's the future though for all cases, though Lord knows when.

mumtobealloveragain Wed 14-Aug-13 17:05:26

Glass - Lot's of parents have equal (or more) care of their children and work AND manage to get them to school on time - I don't think he needs a pat on the back just because he is a man!

He is a good dad, hence the children are happy with him and I am not trying to get sole residency, and I never have. He's just always late for everything and very dis organised and this is now affecting the children.

"Occasional lateness" is once a month. He is taken them late 2-3 days a week, out of 5 days! 50% lateness is not "occasional". Perhaps we just have different thoughts regarding education and lateness to school. I would be very stressed if I took them to school late evn once a month, I'd be downright embarrassed to walk in the front office 2-3 times a week with some lame excuse! I see it as a big issue even if you (and some others probably) don't.

Correct, the school haven't contacted me about it as far as I know, but if they had (would usually put a letter in the book bag) I may not have received it as he doesn't always pass me letters etc (dis organised as I said). Or maybe they have raised it with him (possibly more than once) and he has chosen not to tell me. I won't know until I speak to the school. They are pretty relaxed compared to other schools, so gates open 09:40, bell goes at 09:50 and children are all in classroom sat down by 09:52 (ish) however, they leave the gate open for any "latecomers" til about 9am ish - so there is a period of grace as such, so he must be arriving at least 10 minutes late! sad

China - Of course you are right. Damn you! smile Perhaps my specific issue order request should be that if he is going to be late for school he needs to contact me and I will collect them and ensure they are taken to school ontime? Rather than state he must take them to school ontime. We have moved nearby ish so this isn't a problem for me provided I have half hour's notice I guess.

I wouldn't claim any maintenance off him and never have.

bibliomania Thu 15-Aug-13 09:23:01

if he is going to be late for school he needs to contact me and I will collect them and ensure they are taken to school ontime?

You might be making a rod for your own back there. You said you need half an hour's notice, but if he's disorganised and running late, will he be able to do this? I would emphatically not word the specific issue order this way. You could easily end up being the parent walking the children past the front office late every few days!

ChinaCupsandSaucers Thu 15-Aug-13 09:47:18

I wouldn't claim any maintenance off him and never have

Never say never!

If circumstances change and you find yourself struggling to provide the DCs with what they need, you may have to swallow your pride! With 50:50 care, he could apply for the Child Benefit in his name/address and make a CSA claim from you - do you work/have an income?

glasscompletelybroken Thu 15-Aug-13 17:20:27

I'm not suggesting you give him a pat on the back because he is a man but you do seem to feel that what you want is more important because you are a woman/the mother?

The fact is you are not together anymore and that indicates that you don't get on and have differing views and values on some issues. There will undoubtedly be things you do with the children that he doesn't agree with aswell - that is the nature of seperated families.

Lateness is not ideal but going back to court is - in my view - a massive over-reaction and the real issue would seem to be that you never wanted this arrangement in the first place and are determined to have your own way.

mumtobealloveragain Fri 16-Aug-13 11:53:11

China - No, I don't work or have an income, but that's because my partner works. I wouldn't claim maintenance off him unless something happened and 50.50 residence was no longer in place and I had the far greater financial responsibility for the children. We currently have 1 Child Benefit each, agreed when 50:50 residency started, we are both happy with that (well I am and he has never mentioned it, so I can only presume he is).

Glass - I am a step mum as well as a mum, I'm definitely not a mum with a "I am the owner of the vagina therefore I call the shots" mentality, although unfortunately I know it all too well ;)

We definitely have lots of different views on different matters and I understand difference in parenting styles are not necessarily right or wrong, however, getting to school on time is required, expected and not difference of opinion.

mumtobealloveragain Sun 25-Aug-13 21:42:06

UPDATE

Well, we have an interesting progression to the issue of me wanting the children to have midweek overnight contact and him having stood in Court and adamantly stated he didn't believe it was in their best interests just earlier this year...

He has sent me a text message this morning stating he wants to be honest, that he agrees a week is too long to go without seeing the other parent, he does absolutely believe they should have more regular contact but that he is worried I will go to the CSA and claim maintenance from him. I can't tell if I'm more shocked that he has admitted it in writing or angry that he has dragged it out this long for no good reason sad

Does anyone think this admission by text would be enough for me to apply to Court and get a Judge to order midweek overnight contact with me? It shows that he also agrees it is best for them but doesn't want to do it purely because of money. I haven't claimed from him and don't intend to, I have told him this but he said he can't take the risk and therefore will not agree to having any less than 50:50, not even 1 night a fortnight difference.

ChinaCupsandSaucers Sun 25-Aug-13 23:12:25

Tell him that you can claim maintenance anyway, so if you were going to apply to the CSA you would have done by now. If he's accepted your word up til now, what's going to change?

Anyway, the midweek nights offset each other so there's no additional liability and you still have 50:50.

can't you two just sit down and sort it out like grownups rather than keep running to court?

mumtobealloveragain Sun 25-Aug-13 23:29:13

Well yes, I could claim via the CSA for one of our children but we each hold one of their Child Benefit's so he could claim for the other, which is pointless really. Although I would obviously get more as he works and I don't, but neither here nor there. I think he has sent that text to use it as a good argument/reason he won't agree to me seeing them during weeks with him. I'm hoping a Judge would see it as a very bad reason for not wanting me to see them.

Can we discuss and negotiate? No, unfortunately not, I have tried, even paid to gewt the mediation ball rolling but he refused their offers to attend. We have only been to Court once to be fair, not over and over again.

He can't have them midweek during their weeks with me (or says he can't) due to work, so it would only be me having them a midweek night during their weeks with him. If that makes sense.

Lionessnurturingcubs Sun 25-Aug-13 23:29:20

Mumtobe - Congrats!

I too would be livid about the attendance thing, but don't think the courts are going to rock the boat too much over it. If you can get him to let you take them to school, that would be the best option. Could you not phone up midweek and say DC needs such and such today - I'll pop it round. Or even arrange to meet at the gates - that might shimmy him along a bit. As the youngest is starting school it would be beneficial for her to see you during that week - can you not discuss that with him again now that you have moved closer?

If not, then I wonder if a strong letter to his solicitor might not be a better option than court?

Lionessnurturingcubs Sun 25-Aug-13 23:34:18

Just seen your update - surely there would be no maintenance issue as you will still have the same number of nights each?

Courts won't even entertain talk about money. They will just tell you to go to CSA.

He's opened up a bit now, so maybe offer a trial period of Wed night to settle the little one into school?

ChinaCupsandSaucers Sun 25-Aug-13 23:45:11

Well yes, I could claim via the CSA for one of our children but we each hold one of their Child Benefit's so he could claim for the other, which is pointless really. Although I would obviously get more as he works and I don't, but neither here nor there

Not at all.

You will be assessed as liable for £0 payment as you have no income.

He will be assessed as liable for 15% of his income, divided by 2, then reduced by £7 per week. If he's earning a reasonable wage, then that's a significant amount.

mumtobealloveragain Tue 17-Sep-13 21:00:49

UPDATE about school lateness.

Thanks to everyone who replied before. I know some of you took time to write lengthy and helpful posts so thought I'd update you with the latest development re the lateness in our 50:50 residency situation.

I've received a reply to my letter to the head teacher. He HAS been taking him to school late 2-3 days every week! The head has acknowledged my concerns, agreed it is detrimental for the child and has spoken to the class teacher. Turns out the teacher has informally asked ex to get to school on time regularly as lateness was increasing. After no improvement they also sent a formal letter to ex regarding the lateness and it hasn't improved. I can't believe they didn't inform me too sad Oh and they've listed the reasons he has given for his lateness (written into their late book) such as "overslept" "traffic" "poor weather" "running late" (duh really!) "dad feeling unwell" "alarm didn't go off" - (I can't believe a grown adult would say their alarm didn't go off) The letter was very supportive and they have also said he has often been late for afternoon collection too. They've said they are taking it very seriously and have stated in the letter it has had a detrimental affect on my child- which I knew sad

I wonder if with this formal letter I would have a chance at Court to ask for a greater share of residency on schooldays. I just don't know if its worth the risk of going through the expense, stress and hassle with the risk of a Judge not seeing it as important. He has been given chance to improve by the school, he has refused to communicate with me about solutions to improving the lateness and refused mediation so we can't discuss it that way (I have a FM1 to show this). So my hands are tied trying to improve it. I know ex will say he's made xyz change and will improve. How many chances should he get, or do I need to let another term of lateness go by before taking it back to Court to try and get the order ammended. Hmm.

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