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A new question on residency order

(27 Posts)
onemanfloats Thu 09-Jun-11 11:47:18

Hi all, and thanks for taking the time to read this. I have scanned the other topics, but I cannot find anything that would put my mind at rest on this specific subject.

My partner and her ex split up in January of this year. Since then, her two girls (aged 3 & 2) have been living with her in the local area and the ex has the kids on a Thursday night and also alternating weekend nights (Friday or Saturday) each week.

My partner has decided to move to another city (40 minutes away) as it is better for both schooling and employment. This has not been terribly well received by the father and he is now considering persuing a residency order.
Under normal circumstances, and with my limited knowledge, I would have assumed that the courts would find in favour of the mother considering they have lived with her for the last 6 months, and she is not moving somewhere that is travel prohibitive to the father.

However, my partner also has a 10 year old daughter that she lost a residency order for 8 years ago due to drug abuse. She has been sober for 7 years now, but my question is; will this be held against her in this current situation?
I struggle to see how it can given that she has since raised 2 children, and the father was more than happy to leave this situation for 6 months as it is, until he found out she wants to move.

Any help anyone can give me would be appreciated so that I can help and support in any way I can.
If I haven't explained the situation clearly enough, or you need more information, please ask.

Many thanks in advance,

James

cestlavielife Thu 09-Jun-11 12:21:45

40 minutes by car? does everyone drive? how would the mid week sleepover work out? eg school etc?

going from mid week sleep over to being forced into only weekends could be a big deal

jjonesstewart Thu 09-Jun-11 13:12:15

hi, in my personal experience the courts will look at every asspect and they will take into consideration of the current situation, just because there was drug use previosly and this has all lapsed, the courts may ask for some test to be carried out and aslong as they come back ok there should be no reason why the children can not stay with their mother - the farther will give access. my ex didnt see the kids for 8 mths then we ended up at court for over 3yrs and I moved over 1hour away from my ex and he is only allowed to have the kids 1 day between 10am to 5pm every first and third sat - even tho the courts have given an order he does not see them when he is supossed to so to be honest it was pointless going to court.

onemanfloats Thu 09-Jun-11 13:46:31

c'est la vie life:
All parties drive, and yes, 40 mins by car. If current arrangements were to stay the same, then both my partner and the father would have to make travel sacrifices - it could still happen, but both would have to drive longer to take/collect.
jjonesstewart:
thanks...
the father is arguing that it is not in the interests of the children to move. I can see his point in one degree, but I cannot see how moving to a larger city with a greater choice of nurseries, schools and, eventually, work, can be detrimental.
what exactly do the courts look for in these circumstances? surely there are many many mothers who have moved away from their local area to raise their children in a larger city with no negative impact.
Can the father put a stop to the move pre-court?

Thanks

J

titchy Thu 09-Jun-11 14:05:27

Is your partner moving in with you?

And why are you a) calling your self her partner - she only split up with her kids' father 6 months ago - you were on the scene pretty quickly? And b) why are you doing the finding out and not her?

Just curious....

PiousPrat Thu 09-Jun-11 14:17:23

Do be careful those judgey pants don't cut off your circulation titchy

Perhaps the OP and the mother got together relatively quickly after the split, perhaps he was the OM. The relationship could have been over in all but living arrangements for eons until the mother moved out 6 months ago. That isn't really relevant to the point is it? as for why he is the one asking, maybe she doesn't have Internet access to ask for herself, maybe it wouldn't have occurred to her to ask here. Maybe he is trying to be a supportive partner in finding out a bit of information for her to lessen her stress.

OP FWIW my (limited) knowledge of this sort of thing is that if there were no other factors in the split such as domestic violence (which from your post there doesn't seem to be) then it would be seen as fair and reasonable for your partner to be the one doing the travelling to maintain contact, since she is the one making the decision to move. Would the father be agreeable to her doing the running around to keep contact as it is and so avoid the need for a residency order? If it does get to the stage of going to court, I would assume that a clean drugs test and no current concerns about the girls welfare would be enough to negate any problems from her past but again, my knowledge is limited and mostly from the other side so please do check with someone legally qualified.

As you said the move would eventually allow her better access to work, I assume she is a SAHM just now, so presumably in receipt of benefits. She should be able to get legal aid for a one off meeting to discuss where she stands with this, then possibly for court representation if it gets that far.

onemanfloats Thu 09-Jun-11 14:52:19

titchy:
I have no interest in satisfying your curiosity.

PiousPrat:
many thanks... that all certainly seems to make sense and, as you say, would be a fair compromise.
In the meantime, I will recommend she seeks the advice from legal counsel.

regards,

J

jjonesstewart Thu 09-Jun-11 16:03:32

first thing I would like you to know you have the right to move any where that you want and the main reason would be in the best for your children schoooling etc.. The only time the courts can stop you from moving is if the other parent has applied through the courts - so post court hearings do not count the court will not demand you to move back to the area you have moved - however, where ever the mother moves to the courts will have to move to the mothers district and so your ex partner will have to travel - I moved from one county to another my ex was not impressed that he had to travel by bus and train which took him 2 hours.
Courts sound really scary at first and until you go the court room they are quite helpful and fair at first you may feel or it may sound that the mother and the farther are bad for attending the courts to sort things out.
I hope this has put you mind to rest.

Collaborate Thu 09-Jun-11 17:11:05

You can't move out of the jurisdiction of the court though, ie England & Wales, or Scotland.

jjonesstewart Thu 09-Jun-11 18:23:53

collaborate: get a bloody life - pre court you can infact move any where want and if you live in wales and move to england you can as I did - get your facts right before giving out advice.

You cant move abroad or go outside the EU with out the courts or other parents consent.

Tyr Thu 09-Jun-11 18:37:34

OP,

Based on what you have posted, he has no chance of getting a Residence order. He will probably apply for a PSO to prevent the move but it will go nowhere, other than cause a bit of delay while a determination is made on Contact and Residence.
The distance involved is so small that this is scarcely a relocation at all.
In fact, the midweeks should still be manageable and if you and your partner are willing to share the burden with him, the court will not interfere.
What is in the past is past and while it may be brought up, it will not be held against her.
Is there a Residence order in force?

balia Thu 09-Jun-11 18:50:18

There is significant difference between what a person can get away with, what is legal, and what is morally right or wrong. I think advising someone to just move where they like before the court gets involved is at least morally dubious and certainly not in the interests of the children, given that the father has indicated that he is against the idea. As there is no Residence Order at the moment, the two parents in this case have equal responsibility for their children, a successful regular contact pattern is in place for the benefit of the children, and at the very least following your 'advice' would result in high conflict, the very worst thing for children.

The courts cannot stop your partner moving, OP, but they can make a decision about where the children should live. They would do that by referring to the welfare checklist and will have to balance the effect of the change of status quo against the possible benefits for the children. Are the children in Nursery at the moment? Do they have extended family and friends in the current location? Don't minimise the impact of the distance on them - an hour and a half round trip would probably make the midweek trip impossible, and is a long time in a car for a 2 year old. Now much the previous drug history is a part of any court case would probably depend on how seriously the father feels about the issue.

Clearly, if the court agree that the children can be moved, the contact pattern would have to be changed. It is likely that the father would at least get a full weekend contact fortnightly and probably longer holiday periods.

Has your partner maintained contact with her older daughter?

prh47bridge Thu 09-Jun-11 21:22:02

jjonesstewart - You might want to try reading and understanding what people write before abusing them. And trying to tell a family lawyer that he doesn't know family law isn't the brightest idea.

As Collaborate said, you can move within England & Wales, so moving from England to Wales or vice versa (as you did) is fine, but you if you want to move out of those two countries you either need the consent of everyone with PR or you need the permission of the court. Equally if you live in Scotland you need consent if you want to move out of Scotland.

Tyr Thu 09-Jun-11 21:48:56

Balia,

Whose advice were you referring to? I certainly wouldn't suggest that they move pre-court.
Unfortunately, the courts are bound by precedent (P v P) in deciding these cases and, even in cases where there is an almost equal share of time, the primary carer will almost invariably be granted leave. In this case which is a relatively minor internal relocation, the bar to relocation is set very low.
I would urge the OP and his partner to think long and hard about the impact on the children of the move and whether it is necessary.
Personally, I am inclined to agree with Mostyn J that the approach of the courts in these cases is to "reward selfishness and uncontrolled emotions"

Collaborate Thu 09-Jun-11 23:13:23

Bloody hell miss jones stewart what on earth did I do to upset you? I thought my sympathetic post on your thread where you're suicidal owing to being fearful of being sent to jail for fraud didn't quite call for your venom on this thread.

As prh says, for the purpose of removing a child out of the country, in this instance the country isn't the UK. It's England & wales, Scotland and Northern Ireland - 3 distinct legal jurisdictions.

balia Fri 10-Jun-11 09:11:09

Tyr,

Was referring to jjonesstewart's advice 'precourt you can move anywhere you like' which seemed to me to be implying that OP's partner should move sharpish before the court got involved so she could get away with it before the father had a chance to go to court as they wouldn't make her return the children.

I hadn't seen your reply - I'm obviously a very slow typist! I think your comment on the approach of the courts is, sadly, very accurate, and echo your advice at 21:48:56.

007angel Fri 10-Jun-11 12:19:31

hi,
If you have not gone to court and you are both talking to solicitors ask your solicitor to advise you the correct procedure or abscond and if you do your ex has to trace you which is time and money and once they a have traced you which may take weeks or months the court hearing will be in fact diverted to where the mother & children live.
The courts will not make you move back just for the op as it would be to unsetteling for the children.
To be honest it all depends on your circumstance, if your moving to start a fresh new live for you and your children moving to a better area & schools go for it I say but if it is only to get at your ex then think again as it will get very nasty and your children will be in the middle of the parents argument and to be honest it is not the childrens fault that the relationship broke down in the end it is the children who will have to do the travelling once things get sorted in or out of court.
If i was in you position have a think talk to your solicitor.

onemanfloats Fri 10-Jun-11 12:27:14

Hi guys... thank you all so much for getting involved (but let's not be too hasty to tell others off for points of view smile ).

Lots of food for thought and I will address one or two points.

The move is, long term, seemiingly in the interest of the children due to better schooling and employment opportunities.
In the short term, their nursery is closing at the end of July, and this is when my partner is proposing to move.
Extended family in the current area? yes. Extended family in the new area? No (unless you count my own, of which the numbers are greater... and the numbers with similar aged children is also greater - but I am fully aware that we have only been together a short period. All I can say is I am of an age where I wont be making silly mistakes).

In reality, the father sees the children for a respectable time only once per weekend. He has only recently requested to have them on a Thursday night which involves picking them up from nursery at 6pm and putting them to bed at around 7pm.... and then dropping them at my partner's house at 7am the next day for her to take them to nursery because he needs to go to work. (feels very much a shrewd move to ensure his level of child support payments are kept as low as possible - but that is the suspicious person in me talking. Albeit backed up by his recent desire to be doing things by the book, and now this letter confirming possible court action for custody).

My partner sought legal advice this morning, and I am quietly confident that she will not be put through the ringer in this horrible, and yet necessary, situation... and that is all I wanted to make sure of.

Once everything is sorted, I will post the outcome so that people may refer to it in hindsight. For now, I am reluctant to post any more in case the father reads this forum also (again, suspicious mind!!).

cestlavielife Fri 10-Jun-11 12:58:13

i think the onus is on the mother to show how the move wont affect contact arrangements and how she will make sure contact is consistent etc

make sure you refer to residence not custody

balia Fri 10-Jun-11 19:39:55

It seems - and forgive my suspicious mind - that the move would be, in fact, nearer to your family. And it doesn't take much suspicion to jump to the conclusion that the move is, really, very little to do with what is best for the children, but to move in with you.

In any case 'better schooling' is highly subjective, and 'better employment' is hardly a factor for a two year old that should outweigh seeing her Dad and extended family on a regular basis without being in a car for an hour and a half.

Probably you will get your own way. I would feel happier if there were any sense in your post that the children's righte were being considered or their needs, feelings and relationship with their father prioritised in any way. But still, so long as your partner is not put through the ringer it doesn't matter, eh?

STIDW Fri 10-Jun-11 22:29:52

Posters are entitled to their opinions of course, but at the end of the day the courts don't act on suspicion or jump to conclusions, the considerations are evidence and facts. The only opinions which are binding is that of judges at a final hearing. The courts have made it clear that it would usually be inappropriate to prevent a parent with care from relocating in E&W or Scotland unless the move is to somewhere inaccessible, or there is evidence that the motivation for relocating is to frustrate contact.

However when residence is shared equally, or almost equally, a court may find remaining with the other parent locally rather than changing schools and disrupting established relationships with friends and extended families is in the best interests of the children.

Good contact for children relies on parents working together, or at least not against each other. Mum and Dad have many years of parenting before the children become independent and it will make it much easier for everyone, in particular the children, if arrangements for the proposed move can be negotiated using a mediator if necessary.

It is perfectly understandable that the idea of moving isn't initially well received by the father and the reasonable thing to do would be to offer reassurance, alternative contact to make up any missed contact during the week, involvement in choosing schools, to do most of the traveling etc.

prh47bridge Fri 10-Jun-11 23:58:22

For the benefit of 007angel - if the mother absconds with the children you are right that the courts are unlikely to make her move back provided she remains within the jurisdiction. However, they may conclude that it is not in the children's best interests for them to be resident with a parent with such a cavalier disregard for the law and, indeed, the children's welfare.

If the mother absconds abroad with the children it is another matter. It then becomes a criminal case and the mother can be extradited and imprisoned. The children will, of course, be returned to the UK.

Tyr Sat 11-Jun-11 00:20:09

As a matter of interest, why has the mother of the children not posted on the question?

That seems a little strange.

STIDW Sat 11-Jun-11 02:13:21

Surely there isn't anything the matter with new partners finding out information and supporting their partner, is there? The problem is when, after only hearing one side of the story, new partners (or any other third party for that matter) inflame the situation and take on the spouses' disputes as their own

Acko Sat 18-Jun-11 17:14:26

Onemanfloats, you are in a similar situation to me and my partner. We wish to move a couple of hours up the road as there are better job opportunities and I own a large house there, whereas my partner currently rents a small flat. Her ex moved away by his own choice a few years ago so my partners daughter is used to long distance contact. We have told him we are happy for the contact he has now to continue, albeit in our new location and we will come to an arrangment about petrol costs etc.

He is claiming that moving full stop is not in the Childs best interests and that he will move back here and take over my partners flat and take over full time care of the child. To be honest he is just using this as a way of getting residence and as he does not work and has not payed child support in over a year we would be extremely concerned about his ability to care for her properly.

I'm reasonably certain that he won't get what he want but does anyone have any experience of things like this? Does he have an argument that the disruption of moving in itself is enough to allow him to apply for residence?

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