Mumsnet has not checked the knowledge, experience or professional qualifications of anyone posting on Mumsnet Talk and cannot be held responsible for any advice given on the site. If you have any serious legal concerns, we would suggest you consult a lawyer.
Applying to change a residency order.. Any advice?(70 Posts)
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.
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
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.
Aw thanks winning, it's nice to know I sound reasonable from a parent's point of view!
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.
It's OP by the way! I name changed earlier for a happier sounding name and forgot! I am the same person!
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.
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?
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.
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 I just hope the Judge agrees that it's just not on!
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
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.
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!)
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!
Thanks for the reply ChinaCupsand Saucers! Yeah "blimey!" is the usual reaction we get.
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
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.
Thanks for the honest reply China!
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).
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.
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.
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.
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.
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.
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.
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.
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
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?
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.
If there is a real concern with lateness then the school will be writing letters about it which both parents will receive
I'm still surprised that the school have been so lax about this - the level of abscence described should have been discussed with both parents, not included on the end of year report with no comment.
China- me too! It wasn't even included on the end of year progress report in fact. It was a separate A4 report/spreadsheet that I had requested as DS had casually mentioned he had been going into school via the front gate not the normal gate & I thought this was odd as this means he is late and lateness had never been mentioned to me so I was curious and requested it. Had I not have I wouldn't have known.
I've double checked the report just now and it's definitely 50% late marks over the past 3-4 months during his weeks with him. However that obviously makes it only 25% overall when you also count his weeks with me. So perhaps that's below the "concern" level.
Glass- Do you really think its an over reaction? Would you be happy to know your children were being late to school 2-3 days a week, every week? Would you not want to try and do something about it? As I have said, I am not trying to cause my ex hassle or grief, just hoping I will get the midweek overnight that I feel benefits both children AND I'd like to try and stop the lateness, perhaps by (as another poster has suggested) having it as an undertaking written into the order by the Judge.
I just wonder whether a court will take it seriously if the school haven't; if you put it in your court application to the court and it turns out to be an error, or something they have discussed and agreed with Dad, then it's not going to help your case for other changes.
Is there any way you can delay applying to the court until you've had a meeting with the school about the lateness? They may be able to provide you with something that would support your case, whereas if it is a mistake, you avoid raising it unnecessarily.
I just can't believe that any school would allow that to slide without having spoken to the parent concerned - its just too blatant!
Yes I do - you want to change the system because you didn't want it in the first place and are using this to back up your case. This is really all you have though and going to court over it when the school are apparently not concerned is an over-reaction in my book.
There are a lot of positives in the arrangement you have got. Let the children settle into it - give your ex a chance to get his act together and stop trying to get your own way.
But it's not that dramatic - they have an order, they've been given a window of opportunity to tweak it so it works best for the dcs, why not use that window? I agree that if matters were being dealt with by the parties outside of court, there would be no reason to rush off and initiate a court case over it. But there is a court order that provides for the possibility of some adjustments to be made in the dc's best interests, that should be brought to court by a given date, so why wouldn't you go for it?
The school's concern or lack of it is a red herring - being late 50% of the time he is with his dad is quite significant.
But is it in the best interests of the children to change the routine before everyone has given it a real chance? It has already been said that changing so that each parent has a mid-week visit won't help the lateness so it is purely what the OP wants.
There is nothing to suggest that either the children or the dad are unhappy with things as they are. Why should everyone elses routine be upset just because the OP wants her own way?
But the OP has never said she purely wants the lateness to be dealt with - she wants 3 issues looked at, as she's said from her very first post.
And she's said her dcs will be happier being on time for school and seeing the other parent mid-week.
And the time-frame for making changes is dictated by the original order.
I'm don't understand the resistance - she's not wanting to tear up the order and start again, she just wants to make it work more smoothly.
[going offline now - apologies for posting and running]
The OP has stated that she was not happy with the original order and is trying to build a case to change it. How quickly children settle between houses depends to a very large degree on the attitude of the parents. There will always be some adjustment period between houses and the more often the children go from one to the other the more often everyone will experience that.
This is just my opinion - it appears to me that the OP is more concerned with getting what she originally wanted rather than letting everyone settle into and enjoy what is in place.
I wouls still say that if this was a man talking about his exwife/partner like this he would be completely flamed.
I think we'll just have to agree to differ, glass. I think the house-move does shake things up a little bit, and I can't see that the proposed changes significantly disadvantage her ex.
I can't speak for others, but I wouldn't flame a man in this position - as I said before, it would be different if it meant launching a brand-new court case over it.
Thanks all for your replies. I do think China is right, I should wait until they school opens again to double check the accuracy of the lateness/sickness report but it's unlikely as it is totally correct for the weeks they are with me. But best to check so I can avoid looking like a complete fool in the unlikely event it is wrong
Although the residency order was only made in Feb this year, alternate weeks was in place before then, so I have given it plenty of time to see if it works. There's a lot more to it all than what's here. Other things such as although we both have friends and family helping with the children he has told me recently that they children are being looked after by a friend of his (not a relative) two evenings a week- the same two school nights each and every week by this friend who collects him from school, and they go to her house for tea and ex picks them up from he house after work (6:30ish) and takes them home for bedtime. Whilst I appreciate I do not have the right legally or morally to object about who helps him on their weeks with him (as he doesn't on their weeks with me) but I do object to him saying he won't agree to me having the children one midweek night a week during "his" weeks when on two of those nights he only sees them to take them home and put them to bed Just seems a bit "mean" I guess,the kids have only know this friend for about a year or so and she has no children of her own, so I can't see any reason why on one of these nights they can't come home to my house instead. I didn't know this when we were at Court in Feb, so it was never mentioned, ex just said he had used his right to flexible working to ensure he "hardly works" the weeks he has the children he didn't mention the two nights every week he doesn't see them til bedtime.
Also, when he objected to midweek overnights the Judge suggested midweek phone calls in the meantime. This is in the Court Order to be the same day and time each week- just 1 call per week. Since Feb I have ensured the children called him as per the order every week they are with me. He has made perhaps only 70% of the calls, the other weeks he just doesn't bother, no warning or explanation and lots of the calls he HAS made have been much later than the Court ordered time. So sometimes I'm sat waiting for the call for 45mins before they call, wondering if they will call at all. If I miss the call (has happened a couple of times when he's been late calling) he will not let them call again or answer if I call him to speak to them. So if I miss the call I miss my one and only chance to speak to them for the whole week. So I sit waiting by the phone and he must know that.
So, I think I have decided:
- To wait til September to make the application and speak to school first to check the lateness report's accuracy. Also to ask if they have spoken to my ex or not.
- I will be representing myself and therefore completing the C100 myself. I just can't afford legal fees.
- I will bring the "midweek overnights" issue back to Court. Stating in my application that he has now refused mediation (which he agreed to attend when we made the residency order) and which the Judge insisted was added as an undertaking in the order. I have attended a mediation session and obtained an FM1 to prove he refused. He has also ignored my solicitor's letter to discuss midweek overnights and try again to arrange mediation (sent a few months ago now). I will mention that he isnt making tbe Court ordered midweek calls and the children aren't even with him on 2 of the afternoons/evenings that he refuses to let them come to me so I propose they have a midweek overnight with me on one of those days.
- I will also add the issue of persistant school lateness to the C100. Stating 50% lateness the weeks they are with him and providing a copy of the school lateness report to probe this. I plan to ask that an undertaking is added to the order that states my ex should ensure the children are taken to school on time unless there's a specific reason or problem (everyone has issues/ the odd lateness) I just need to ensure they are taking on time regularly rather than late 2-3 days every week! Hopefully having it written into the order will get him to realise its important to ensure they are at school on time and he will buck his ideas up.
Sounds like a plan! (name change from NicknameTaken).
I think it would be worth a call to the court clerk explaining that the court order gives a certain date to bring the matter back, but you're going to be late because of the need to get further information from the school. I think it makes sense to show that you're operating in the framework of the current order (ie. the date for review) rather than trying to re-open matters that would otherwise be deemed closed.
Thanks Biblio - I will do that too. I haven't been able to work out the specifics of the bit in the Order the Judge added about "leave to return the matter to Court within 6 months" as I know anyone can apply to change or tweak a residency order at any time, but calling and explaining can't hurt. Ultimately, it was a "by consent" order to we actually agreed on all the points, neither of us was "ordered" to do anything.
It's the first order we've had and I don't think he realises he NEEDS to keep to things he sees as trivial such as the once a week phone call. To me, it's really important as otherwise I go a whole week without speaking to the children, but he isn't that bothered about the call when they are with me.
mumtobe Ultimately, the order is about what the DC's need - so if the court is assured that it is not detrimental for them not to speak to the other parent, then whether or not you want to speak to them won't be considered.
There are arguments for and against regular phone calls to the other parent (and I'm fairly sure that research has been done in the US, too) - a great deal depends on the content and nature of the calls and demeanour of both parents. Phone calls often cause a great deal of angst, but in my experience, DC's only miss them if they are somehow led to expect them, or feel obligated to make them.
China - Yes of course, I understand the residency order is about what is best for the children and if the calls upset them then I would have to "suck it up" and accept that they won't happen.
However, it was never something I insisted on, it was something the Judge suggested when my ex refused midweek overnight contact. The Judge asked us both to agree to attend mediation to discuss/negotiate midweek overnights and in the mean time he would add to the order 1 midweek call per week. Ex even picked the time and day that was to be written into the order to ensure he was free to get hem to call around his working hours and I just agreed to try and make things as easy as possible for him.
I don't believe daily calls are necessary, I'm not one of those parents who insists I need to speak to the children every day to "check" they are ok. I do just let my ex get on with parenting and enjoy their time there, but a whole week not speaking to your children (or for them not speaking to mummy or daddy) when they are so young just can't be good for them. The Judge asked us to agree to Skype (given their young ages) but ex declined saying he would prefer phone calls, which I agreed to thinking it was better than nothing.
mumtobe I assume as it was an order by consent that CAFCASS haven't been involved so far?
I wonder whether a re-application to the court would lead to an order for a "wishes and feelings" report for the court before they make any amendments? Was this mentioned at all?
The courts do seem to place a great deal of weight on the words of very young DCs - my DSC were 5 and 12 when they were interviewed a few years ago; DSD has since said that she hated the responsibility that it placed on her
What evidence do you have that the long spells between contact aren't good for your DC? How is their distress/harm manifesting itself, and how long has this been the case? Was it evident prior to the last court hearing? How did the judge view this evidence? What further evidence do you now have that will add weight to your previous submission on how the week about arrangement, with no mid week contact, is detrimental to your DC's welfare?
Reading your posts, there is a lot of what you want, and what you think is right, but very little in the way of how this set up is having an adverse effect on your DC. How late is 'late for school'? 5 mins? 10? 45? In what way is this impacting your DC's education? Does the school report address this?
Missing step siblings isn't really something I'd consider 'trumps' the other parent's time with your DC, and don't imagine a court would consider awarding more contact in your home on that basis. Then again, I'm not a lawyer so I've no idea if that argument holds any weight.
70% of mid week calls having been made - I'm pretty sure your ex could come up with plausible explanations as to why this hasn't happened on occasion, especially with young children. I tend not to call my DD when at her dads as she just gets upset and wants to come home. If I don't call, it doesn't enter her head to get upset or want to come home.
Childcare for your DC while on his week is entirely his prerogative. I would not rely on my ex for childcare. It creates a situation whereby you give control of your own life over to someone else, and if as appears in your case you don't get on, that just causes more conflict IMO.
I'm not legally qualified but from reading this thread, it doesn't appear to me to be worth the additional acrimony to go back to court over these issues. But I guess that's your call to make.
Thank you for your advice - crunchycarrots!
This is it, I suppose I don't have any hard, tangiable "evidence" to present to court as such. The children are bright, happy and doing well. They are not having therapy or anything like that.
I do know they'd prefer to see us more often (that is my ex as well as me) which is why I want more frequent contact for us both if possible, that's what I originally proposed in Court at the start of this year. He said he can't see them during their weeks with me as he is busy working and therefore they shouldn't come to me as that will unbalance the 50/50 arrangement by 1 day. The children often count down the days til handover day, get quite upset and "over emotional" on handover days, get a bit clingy etc. It's more about how they are, the things they say and the way they act that makes me 100% believe that they'd be happier and more comfortable with more regular contact. How I show/[rove that to the Court though, I don't know. Ex has agreed that they often really miss me (as I have told him they do him) and that he thinks they find a week a very long time, but he won't agree to change it.
They have step siblings who they miss greatly as of a similar age (ish) and soon will have a new baby brother or sister, I think that will make the week at a time arrangement even harder for them. I'm not expecting the Judge to award me more time with the children, just more regular contact and ex would have the opportunity to have the same in return.
As for the calls, they are a specific point in the Court Order. he even picked the day of the week and the time for the call (I wanted it to suit him so he was less likely to not do it). Other than that 1 call he will not accept me calling him at all during the week the children are with him, so I have no other communication with them for a whole week. Even when he does help the children make the 1 Court Ordered call he refuses to allow them to speak to me and then their step siblings he hangs up if they try and have a chat with them, he says the calls are only for me to speak to the children, whereas surely a few minutes talking to their siblings wouldn't hurt him? I'm not expecting extended calls, they are only young so don't stay focused long, maximum call has probably only been 10 minutes, usually less.
I find this thread quite upsetting. Why should any parent refuse something just because it upsets a 50/50 balance? This is not about mathematics, this is about children who will not have precise needs that fit into a box.
I cannot see how it can be good for children to learn that each parent is only available one at a time - to all intents and purposes, the other parent just doesn't exist when they are not staying with them.
OP, I wish you luck in sorting this out so that everyone is happy.
HH it reads to me that the DC are thriving despite the current set up, and that's where the OP seems to be in difficulty. While the OP might struggle not speaking to the DC for a whole week, the DC themselves don't appear to be badly affected by it. I'm not sure another court case will result in any improvement for the DC, given the increased acrimony that will undoubtedly create.
But as I said, I'm not a lawyer so maybe I'm talking out of my backside
I know where you're coming from. But just because children don't display an overt problem with something doesn't make it right - children are very adept at going along with things, trying to fit in, trying not to upset the status quo. My brother spent years being carted between my parents house without complaining once. It was just 'what he was like' - and he hated to cause anyone any upset. Actually it traumatised him and he would probably still say now they were the worst years of his life.
I do not believe that children should be split like other possessions. There is plenty of evidence to back that up too - you do NOT need to spend equal time with parents to have an equal relationship, or to feel a maximum amount of security as a child growing up.
I am hacking my way through a dreadfully acrimonious divorce, can you tell this is one of the big issues we're facing?
crunchycarrots - Yes, I see your point. They aren't "suffering" as such, but kids are so flexible they sort of accept they have to just adapt to whatever situation they are placed in don't they, doesn't always mean that it's best for them or they wouldn't be happier if it were different. We could probably change to two weeks at a time at each house and they still wouldn't show any signs of "suffering" but I know they'd miss us both deeply. If that makes sense. By no means am I claiming they are being abused or mistreated at his place, just that a simple "tweak" could make it better.
Helium - My ex loves 50/50 and is obsessed about things being exactly equal. I've actually just found a text from him I kept from last year (before we went to court) in which he states his reason for no midweek contact are: A. He hardly works the weeks they are with him, so for them to come to me one evening he would have to give up time with them. B. He can't have them one night during weeks with me so it would "work in my favour" (his exact words) and I would have them one extra night and they might think it's cause he didn't want them. Well I've since found out he actually doesn't have them himself 2 afternoons and evenings until nearly bedtime, so his whole argument doesn't really stand up. I am thinking of reading his text out at Court in the hope that I can get the Judge to see his reasons for not wanting the children to have midweek overnights it silly and all about what he sees as fair for him not about them. I was always under the impression alternate full weeks was unusual for young children and worked better for older children and therefore Judges and CAFCASS liked to see more frequent, shorter periods between contact.
Yes, as you've said, it's as if the other parent must not exist when staying with each of us. I do talk to them about their life at their dad's, mention things, discuss, etc but they have told me he doesn't like to hear about their time here. They are not allowed to call me during their week with him and he will not accept calls from them during their week with me. We had a family event recently (wedding) that fell on "his" week and he refused to let them attend. He said they could only come if they attended with him (was a member of my family's wedding) and it would have been oh so very awkward if he was there, in fact I don't think they would have said yes as he's been really argumentative and rude in front of them before and they wouldn't have wanted to risk him ruining their day. He didn't have any other plans for the children that day but just said it wasn't fair for me to have them an extra day. ONE extra day, in order for them to celebrate a family event and have a nice day, in the grand scheme of things ONE day is nothing This was a one off occasion, I don't usually ask him to have them any extra days at all.
Sorry China, I missed your post before and didn't reply.
CAFCASS were "involved" last time, sort of. The officer present at the hearing had telephone contact with my ex before the hearing but hadn't "had chance" to speak to me. I was presented with the report he made from what my ex had said and it was very "interesting" shall we say. The CAFCASS officer had a very quick chat with me at Court before the hearing and said he picked up on my ex being very "bitter and resentful" of me, how I had moved on and my new partner.
He didn't say much at the actual hearing. The Judge seemed to nod and agree with my proposals for midweek overnights but once ex disagreed the CAFCASS officer said that as we had agreed the majority of points and alternate weeks seemed "clean cut" to him we should perhaps have what we did agree put into the order and the Judge said we should go to mediation to discuss midweek contact. It felt to me that CAFCASS officer didn't want the extra "hassle" perhaps and as we mainly agreed (things like alternate birthdays, alternate Xmas's etc)it seemed to be good enough and not worth a full contested hearing over what he saw as a minor point. My solciitor has since said she was shocked at his recommendations and comments about alternate weeks being "clean cut" as in his experience CAFCASS like regular frequent contact and tend to frown upon young children spending long periods away from wither parent, especially in shared residency cases. He has lots of experience in family law (15+ years, so I trust his judgement). He said returning to court may mean we get a different CAFCASS officer who has a more "usual" idea about what is best for young children.
So do you want to do:
Saturday, Sunday, Monday, Tuesday overnight with dad.
Wednesday overnight with you.
Thursday, Friday with dad.
Then swap? Doesn't sound too bad.
I also think that the other parent should get first call on looking after the children if the parent who is supposed to have them can't do it.
We've always done this, I'd be pretty pissed if someone else was looking after our children when I'm available.
Sort of Nontents.. We currently do Mon-Mon alternate weeks. Ideally I'd like
Mon -Weds night with dad
Thurs night with mum
Fri-Sun night with dad
(then reverse on their weeks with me)
I previously suggested offering the other parent first choice for looking after the children if the parent they are staying with can't (substantial periods of time and regular times only, I don't mean the odd few hours) but he refused. He said he can't have them anytime during their weeks with me and didn't want them spending more time with me than him. So every Weds and Thurs afternoon on their weeks with him they are collected from school/pre school by his friend, taken to her house for tea, and stay there until he collects them and takes them home to go to bed. His friend lives very local to where I live and doesn't have any children, isn't related to the children and they don't really do much there apart from watch tele and play in her garden, she has no children so it's not like they are spending time with their friends either. That's every single term time week, yet he refuses me a midweek over night with them because he will lose time with them - it just doesn't make sense. They could be here with their mummy those nights
Do you know if Courts go for this "right of first refusal" or is it seem to be too controllong over the other parent's time with the children?
My ex asked for a "right of first refusal" to take care of dd if I need to go away overnight for work etc, and I agreed. I'm not sure whether the court would impose it against the other parent's will (that parent might have good reasons to do with convenience and cultivating relationships with extended family), but I think it would be interesting to ask for it and see what your ex's response is. From what you say, he really seems to be motivated by blocking you from having any more time than he does, and I can't imagine a court being very impressed by that.
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.
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...
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!]
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.
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:
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.
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!
Chinacup - I think you're right. It's the future though for all cases, though Lord knows when.
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!
China - Of course you are right. Damn you! 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.
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!
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?
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.
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.
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
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.
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?
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.
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?
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?
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.
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 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
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.
Join the discussion
Please login first.