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Residency - the final say when you can't agree

(19 Posts)
DebbieDee29 Tue 21-Jun-11 00:12:27

Hi, new to the boards so please be gentle with me. My problem is and I can't find the answer to this even though I have searched and searched - when residency has been decided by the court and Caffcass and contact set, if the 2 parents can't agree on division of school holidays (half each is ordered) then what do I do? I have offered at least 3 different options for the coming 6 weeks holidays but ex will not agree to any. He is teacher so off full 6 weeks but my husband now can only take final 2 weeks due to work commitments and so this is only time we can go away for a holiday. Do I,as resident parent have the final say? Am at my wits end over this and getting 3-4 emails aday from ex over this. We have been divorced 10 years now and it never gets easier.

Bogeyface Tue 21-Jun-11 00:26:09

Have you got records of the options you have given him such as emails etc? If you have then if he goes back to court you can prove that you have given as many options as you can and therefore it isnt you that is breaking the agreement, it is him. If he has the full 6 weeks off and you can only have 2 weeks to go away then I dont think a court would find that you are in the wrong.

I would email saying that you are going away for those 2 weeks and giving him the options for the remaing 4 weeks. You have tried to compromise and he is the one being awkward so take the power back and refuse to be bullied!

sunnydelight Tue 21-Jun-11 00:28:43

You need someone with experience in family law, so you might be better off posting on a different board. In general the law is all about "reasonableness" so I would have thought that if you are offering many different options you are showing yourself to be reasonable, and if your ex is refusing all options he is not. If you give the dates for your two week holiday and tell your ex he can have any arrangement he likes outside that you really couldn't do more. It's not my area of expertise though so hopefully someone else will come along. Good luck.

Birdsgottafly Tue 21-Jun-11 00:35:08

Surely if you have been divorced for over 10 years then your children are over 10? If so, it would also depend on wether your children wanted to go on holiday. As long as you show that you have been as reasonable as possible and it does not block your ex from having his time then you should be fine. Stand your ground and don't get petty, point out how it is in the childrens interests to come to an amicable arangement that still allows you all a hoilday.

worraliberty Tue 21-Jun-11 00:38:48

Why don't you phone your solicitor?

izzywhizzyletsgetbusy Tue 21-Jun-11 02:51:02

Providing you can prove (hard copies of emails etc) that you have offered your ex a number of options I would suggest that, if you haven't done so already, you go ahead and book your holiday for the final two weeks of the school summer break.

Then write again to your ex and say that, in the light of his failure to confirm what contact he wishes to have with his dc(s) during the school summer holidays, you've had no alternative but to book your own holiday with dc(s) from/to (give dates) otherwise any further delay could have led to him/her/them losing out on an away break with you.

Also give your ex a further choice of dates* during the first 4 weeks of school summer hols so that he can choose a 3 week period for contact with his dc(s).

*I suggest you allow a couple of days after end of term for your dc(s) to recover from the ardours of school, and a couple of days the other end for packing for your holiday. This will leave a 3 1/2 week period of available dates that you can put on the table for your ex to choose from.

On the basis of what you have said in your OP, should your ex refer this matter to his/a solicitor I doubt that he will be encouraged to make an application for further direction or variance of an existing Order relating to contact but, in any event, a Court is unlikely to look favourably on any such request as your evidence will be compelling in that you have reasonably attempted to reach an accomodation with your ex by offering a choice of dates to comply with existing contact requirements.

In addition, you are bound by circumstance in that your dh is restricted in the length of time, and when, he can be absent from work while, as a teacher, your ex has an extended holiday period during the summer months.

I suspect that your ex is simply trying to be ornery but that's no reason why you should roll over for him. If you want to throw in a sop to his ego, you could perhaps suggest that this year he has the dc(s) for the first 3 weeks of the hols, and next year he can have them for the last 3 weeks (if this suits your dc(s) and yourself).

InTheNightKitchen Tue 21-Jun-11 09:32:26

You have given him a number of options but all of them include you having the DCs for the last two weeks? That sounds like a lot of slight variations on one option.

I am not claiming that YABU (it seems like he is) but it doesn't sound like a very strong case.

TandB Tue 21-Jun-11 09:39:59

My experience of family law is a few years old now but I did a lot of contact cases and I can't imagine the basic principles have changed that much.

As long as you are giving him reasonable options I agree with Izzy - no competent solicitor will encourage him to return to court over such a minor (in the scale of things) issue. He has much more holiday time than you and your husband and you have made it clear that you are stuck with the last 2 weeks. It would be a bit of a stretch for him to say that those are the only weeks he can do too.

Definitely keep copies of emails etc just in case he does decide to make an arse of himself and try to drag this back to court.

The bottom line is that you are the parent with residence and you have the right to make decisions about your own family life as long as you aren't making things unduly restrictive or difficult for him. He can't dictate terms to the extent of denying you a family holiday.

Bonsoir Tue 21-Jun-11 09:43:07

OP - you have my sympathies. Sorting out summer holiday dates for my DSSs is always a huge headache.

If you and your DH have an absolute work constraint that means that your DH can only take the final fortnight of the six weeks for a family holiday, then you ought to be firm about that fortnight. Then I think you ought to let your exH choose a fortnight from the remaining first four weeks for the holiday. And then split the remaining two weeks as best you can between you.

DebbieDee29 Tue 21-Jun-11 11:44:02

Thanks for all the advice. I have over 50 emails regarding this situation up to now and will make sure I keep them all. I have offered him the choice of any 3 of the first 4 weeks of the summer break but he is still not happy.

We are back in court this afternoon as he has launched a new residency case as me and my DH and DD want to move to a different area (10 miles away). On our last appearance the judge sent me and my ex both on a PIP course and a mediation interview and has asked us to try to come to a satisfactory arrangement for both families. I am going to highlight how we are unable to ever come to agreements about anything and use this as a prime example, it is every situation he makes huge issue of including where I have my DS teeth checked and his hair cut! He makes life very difficult and tbh we are really sick of it! It would be better if I could have the final say on things without being a tyrant and laying the down things which are unreasonable but I appreciate this would be a difficult thing for any judge to grant. I am quite sure I am heading for another full hearing with Cafcass reports etc so will hopefully get something sorted out soon but as for our holiday I think that for the benefit of our family and the children then I need to put my foot down and insist on the final 2 weeks so we can give them a great holiday. Its a once in a lifetime deal to Barbados to a fantastic family resort with so many wonderful opportunities for my DS to try out and only affordable this year as we sold our house and DH works for an airline so we got free flights as part of his work. My DS really wants to go on the holiday and has told his Father this.

He once took me to court years ago to try to stop me taking my DS to spain for a week and lost that time and was made to pay costs relating to the case so its my hope this can be highlighted in court this afternoon.

Thanks again for the advice people smile

Lonnie Tue 21-Jun-11 14:13:14

OP One thing I am wondering in this hasnt been asked.

Is there a reason why your x doesnt want you to have your ds this two weeks? IE had he something planned? is there a birthday?

If forexample it is his parents golden wedding anniversary then I can see why he is unhappy about it and then it will take some mediation

But if it is simply because he wants your ds those two weeks then YANBU

However I was going to suggest mediation but that doesnt appear to have worked..

DebbieDee29 Wed 22-Jun-11 23:27:26

Hi, an update for anyone interested. Appeared at court yesterday and the judge ruled that we are to go for a full residency hearing with statements filed and served by me and my ex and CAFFCASS reports with a full final hearing in October. This will be the second time I have been through this process so have some experience although I am in no way an expert at all! The judge also heard why we each wanted the final 2 weeks and it turned out my ex wanted the final 2 weeks to attend 1 football match and watch another on TV with my DS so the judge ruled and made an order in my favour so we get to go on our family holiday - yay! smile So onto writting my statement for the final hearing, where to begin??????

If anyone has any good advice for this then I am all ears, as in things to include etc

xxx

millie30 Wed 22-Jun-11 23:33:11

Well done on getting your holiday! How old is your DC and who do they want to live with? If they currently live with you with no concerns I can't imagine that a court would disrupt the status quo.

Tyr Wed 22-Jun-11 23:46:18

DebbieDee29,

Sorry, I've just spotted this (it might have been better in the legal section)
You state that you already have a Residence Order in your favour so I assume the current proceedings have been initiated by him?
What has he applied for?
What age is the child/children?
What are the current arrangements for contact?
Are you legally aided/ in a position to pay legal costs or will you be acting as a L.I.P?

Bonsoir Thu 23-Jun-11 09:02:35

Well done on getting your holiday dates - and it is just shows that the courts/judges can be quite practical and make rulings based on a common sense appraisal of all the data.

What do you want, long term, for the residency of your children?

Birdsgottafly Thu 23-Jun-11 10:44:28

Op the judge has based his decision on what is beneficial to the DC's, the family holiday is, watching the football matches isn't, this isn't a judgement on either of you. Base what goes into the letter on these terms. State why you want what you want, to happen in terms of 'for your DC's benefit', remember that the court will view both parents being as involved as possible in being in the 'best interests of the DC's', so you will have to state any change in them terms.

Once your DC's are 10, by law their views have to be sought, if you are in dispute with your ex the DC's should be awarded a SW to determine their wants and wishes. Over the age of 12 they have to listen to the DC's.

niceguy2 Thu 23-Jun-11 11:02:17

I'm glad it worked out for you OP. Sounds like your ex is using contact as a means to control your life.

I mean seriously, taking the matter to court because he wanted to watch two football matches is ridiculous.

I think you need to have these examples highlighted to CAFCASS who can hopefully include these in their report to the judge.

I can't see how a shared residence order would work here as your ex will use this to continue to make your life hard. A full residence in your favour would be more beneficial to you although it won't completely stop him.

And 10 miles!!???! I moved 100 and the judge said at our hearing to my ex "It's not that far!"

Tyr Thu 23-Jun-11 11:57:54

One small and frequently misunderstood point- a SRO will not allow him to make your life hard; if indeed that is what he has applied for.
There is very clear jurisprudence as to the exercise of PR within a SRO. If he has regular substantive contact with the child, a SRO will make little difference in that regard as you will still be the primary carer.
His behaviour over holidays will do him no favours in court.

DebbieDee29 Mon 27-Jun-11 14:17:08

Hi again,

we only have the one son who is 13 to decide on residency over. I have 2 children but its only my eldest who is mixed up in this.
My ex is going for full residency with contact for me as and when my son asks for it (son won't ask as he feels he would be betraying or hurting his dad by asking so contact would be sparce and would only happen at weekends if no football on)

While residency has been with me I have ensured my son see's his dad every weekend from fri - sun and half of all school holidays. This has been in place for 6 years with only a 6 month break last year when ex refused to see son as he wrongly believed I had broken the contact order by not giving him half of school 6 week break. It was only when I told him out family was moving 10 miles away that he started to see our son again and then went for residency so son wouldn't have to move area or school.

Son says he wants to live with his Dad but I don't feel this is within his best interests. His Dad has violent history, is very manipulative and extremely controlling. Son would become his best buddy and not have normal balanced family life. Ex has young daughter (3) from relationship after me and childs mother also left him for violence and ex has no unsupervised or overnight contact with daughter. He is now single man working part time.

I'm trying to represent myself as my husband works and he earns too much but very little spare money about after bills paid. Have so far written most of my own statement but have yet to file and serve it.

Am really worried court and Caffcass will listen to son and award residency to ex. Feel that if this happens I will lose my son altogether sad

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