Can he take him overnight?

[freedomfrom]

Hi,
I have a 13 months old and am currently pregnancy with no.2.
I am in the process of splitting up from my other half. We have never lived together and he is hardly here. I have basically raised DS1 on my own.
As we have split up before and got back together breifly, I know he is looking to have DS1 stay with him throughout the week asap.
The problem I have, apart from the fact that DS1 has never been away from me for more than an hour, is that OH smokes weed in his flat. hE SMokes in his bedroom and has said he wont smoke when DS1 is there, (the whole flat smells of it and he would still smoke when he was in bed etc).
I also think that he has been emotionaly abusive to me. Using silent treatment, moods, manipulation, subtely putting me down etc. He closed me off from seeing any x's when we first met as he said it was wrong to do that.
He has never bathed, cooked, dressed DS1. He has changed his nappy maybe 20 times (I'm being generous). He is always late, lets us down often etc.
He is on the birth certificate and has joint parental responsibilty. I have no problem with him seeing his children, but I dont want them being at his house, overnight, (or during the day for that matter becuase of the weed)
If I took it to court becuase we didnt agree on this, would it be likely to swing in my favour?
Would I need to apply for residency or do I automatically have it as he has always lived here?
Also I am worried about him making stuff up about me to make me look like a bad mother etc. I have a feeling he actually did this with his x partner, (they have a kid together who he has stay at his house 2-3 days a week)
Does anyone know where I stand with this?

Thanks

Hi, get yourself some legal advice first of all. Most soliciters will give a free half hour consultation.

You do not have to do anything - it is up to HIM to take YOU to court to gain access. Even though he has PR it doesnt mean that he will get overnight access as your ds has spent all of his time with you.

You have residency if the child lives with you, if he starts a mud slinging fight in court it could get nasty but if you are pushed into a corner you can make it known that he is taking drugs. This can be proven by a strand test or similar and after that is out in the open there is no way on earth that he would be awarded overnight contact!

... if at all possible try and discuss your concerns with your Ex, what would need to happen that would make you happy with overnight stays, how would it work, and what you would need to do to facilitate overnight contact.

What whiteandnerdy said.

Just to pick up on what LBE said, you don't have residency. No-one does until a residency order is put in place. It's not necessary unless you need it though, like he's a flight risk or you don't think he'll bring the children back when you both agree.

There is no way on this earth I'd agree that a child of this age should spend the night with a man like that. If he wanted to take it to court, I'd bring out everything I could to stop it.

What do you think he could say about you in court - what proof would he show to back up his claims?

The fact he is asking for this just shows he has no idea. He needs to learn to be a parent before he can expect overnights.

Contact should be increased gradually. From a couple of hours, to four hours, to eight hours, then to overnight - WHEN THE CHILD IS READY and if the child will be cared for properly while there. It should not be because dad wants it, and there should be no weed smoked at all while he has responsibilty of his child (or at all for that matter).

He needs to prove he can care for this child and to do that he needs to be given the chance. Not by having overnight right away, but by gradually building contact, by turning up when he says he will, by being consistant, and by putting his child's needs first. And a big step in doing that would be giving up the weed.

The weed smoking is a genuine issue. What would it take for you to allow overnights? Is him saying he won't smoke it enough? Would he need to give up completely? Would you believe him if he said he had given up or would you insist on a test to prove it?

You do not have residency, neither of you do unless a court awards it to you.
And you don't need to take him to court to stop overnights, he needs to take you to court to get them. And in court they will want to see contact slowly increased and to see him giving up his weed habit. So don't worry about that. It won't be fast or go to overnight right away should he choose to go that route.
Hopefully you will be able to sort it out between you first.
How would you feel about him having baby at your place while you went out for an hour or two? Or to have baby at the park while you pop to the shops? That might be a starting point and give you a bit of a break too.

Apologies for giving you wrong info regards residency, hope everyones advice helps you feel more secure in your position.

You asked about likely outcomes if you went to court - there are no guarantees, but I would say there are a number of issues that make it complicated. Firstly, if he already cares for a child 2-3 days a week your reservations about his ability to parent (cook, dress etc) are significantly weakened.

Secondly, many parents smoke weed (I am not one of them, incidentally)and they don't have their kids removed because of it. If your ex has stayed over with you and not smoked it in your house, then he is capable of not smoking it overnight. If he gives an undertaking that he won't smoke whilst parenting his children, then the court may accept that.

I think I'd be tempted to suggest a build up of contact starting with a few hours out with dad, increasing it by an hour or two every week. If he's as feckless as you say he'll soon lose interest and the overnight issue won't come up.

Thanks for everyones advice on this thread. i Just wanted to update and raise some further concerns etc.

Tanga, yes he cares for another child, (he is 8years old though) so does most things for himself. When he has stayed at mine overnight, he has smoked outside. I also know that he smokes in his bedroom while his DS is staying with him. He smokes in the park in front of him, and other places outside. (If he comes too close he will tell him to go away). I dont think I can trust him not to smoke.

Gillybean2 I would need him to give it up completely and for him to be tested reagularly to be honest. Loads of people he knows smokes it, including his Mum's partner (in their house) so its very much a part of his life. I doubt very much he could be without it.

Aside from the weed, and after hanging about on MN a bit since I posted this and doing research etc, (I have now split up with him), I know I have been emotionally abused by him, and I am concerned he may be NPD or something like that.
He is already sending me text accusing me of abusing his son. (I havent at all, this is the worrying thing)

1. Should I report these text to the police? I had about 5 from him yesterday. There is other things, manipulation, control, typical emotionally abusive behaviours. He told his DS infront of me that I was crazy, he speaks badly infront of his DS about his own Mum.

Today he is being nice again. (he had to cancel plans to come and see DS) He has been consistently late when coming to see DS, normally by 2 hours or more. One time I told him it had gotten too late to see DS. The next time this happened he came anyway, (turned up at 7pm which is when I am getting him ready for bed) Do I have to let him in if he turns up 2 or 3 hours after contact has been arranged? Do I have the right to say when is a convenient time for him to come, (i.e. during the days and not in the evening as DS gets excited and then takes a long time to settle, also interferes with him bedtime routine) Sorry, long post. I just want to know my rights. I dont want to stop contact at all. I just want to know my DS is safe and for the harrassment / emotional abuse to stop!

Of course you have the right
As I understand it the acces arrangements are for the benefit of the child. So turning up 2/3 hours late and way past his bedtime is not in childs best interests at all now is it.