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Threat of courts concerning contact with children...advice please

(9 Posts)
YoungStepMum Thu 25-Aug-11 08:31:08

My brother is terrified of staring divorce proceedings against his estranged wife because he thinks this might spark a bitter battle over access to the children. He currently sees them every weekend and a few hours on two afternoons during the week. They arrange this all pretty amicably and are quite flexible when it comes to making changes. He is worried that if he ‘rocks the boat’ then she will apply to the courts. I don’t know how these things work but surely if there is no evidence of violence/abuse, the children are not in danger when they stay with their dad i.e. there is no reason why the children can’t spend equal time with their dad (other than his wife just doesn’t want them too) then a court wouldn’t stop him from having them as much as he does already? Also, if she did apply to the courts, who would foot the bill? Any advice would be greatly appreciated.

Gonzo33 Thu 25-Aug-11 09:54:22

Ok, as far as I am aware (and I expect that Collaborate and babybarrister will correct me if I am wrong because they know what they are talking about and I am going on experience) your brother would probaby be afforded the same contact as long as there is no history of abusing the children (by reading your post there does not appear to be).

Costs will be paid by both parties (ie your brother would pay his solicitors/court costs and your stbexsil would pay hers) as far as I am aware it is very unusual for costs to be awarded in these cases.

Gonzo33 Thu 25-Aug-11 09:55:37

By the way if this situation does arise it would be better to try mediation first though. If that is in anyway possible. My exh refused mediation point blank which is why we went straight to court.

STIDW Thu 25-Aug-11 10:32:35

The only way to deal with threats is to establish physical and emotional barriers, be clear what your needs are and how to achieve them without being hurtful. Threats just get worse otherwise.

Good contact for children relies on parents working together and parents can agree between themselves what they like. There is no reason children shouldn't live in two homes but it doesn't have to be 50:50, it can be in different proportions. If parents can't agree between themselves a mediator can work with them to help them reach agreement.

The problem with the arrangement outlined above is that if the children attend nursery or school and/or Mum works during the week she would have a good argument that she doesn't have quality weekend time with the children. If this was the case would your brother caring for the children overnights during the week, taking them to school etc be a practical option?

In children court cases each party invariably pays their own costs.

YoungStepMum Fri 26-Aug-11 09:50:32

Thanks for the responses, I'm glad I'll be able to put his mind at rest a little bit over all this.

STIDW - well she is happy for them to spend half the weekend with him at the moment. He has offered to have them overnight once a week rather than go round there to 'babysit' which makes him feel very uncomfortable but she always says no becuase it will 'disrupt their routine'.

tranquilitygardens Sat 27-Aug-11 12:28:41

As long as someone is not personality disordered, of the anitsocial/narc type, which sadly makes up about 5% of the population, you should not need to go to court or have anything nasty go down. The anitsocial/narc will use court to abuse, if you marry one they will have abused you and the children previously and if you married and had children with one, you need to undergo counselling for what damage that relationship has done to you, as it always will have damaged you. Lesson keep away from these people, it bit like shutting the barn door after the horse has bolted I know.

gillybean2 Sat 27-Aug-11 12:52:04

He needs to keep a diary of contact so he can accurately recall and show what contact he, and the dc, are used to and has been the norm for them.

I doubt she would take him to court over contact as she would loose and her sol would tell her that. It is far more likely that she would simply frsutrate or make contact difficult, or even stop it all together. If he thinks this is likely then he should be aware that the catalyst can quite often be when a new partner comes on the scene.

I would therefore suggest he looks at getting a formal agreement if he thinks it likely she will frustrate contact, whether the catalyst be divorce or a new partner or whatever.

If at all possible they should try and come to an agreement on contact. If they can't agree then he could suggest mediation as a way forward.

He could expect to see them for half the holidays and every other weekend if he took it to court, but that is not guaranteed, it just seems to be what the courts dish out as standard mostly. He can also represent himself at court which is a cheaper option if he feels confident enough to deal with the paperwork and speak in court. Court will want to see mediation tried first and will send them away for it. So he should offer (in writting) this first and they can get their agreement rubber stamped by the court rather than taking it to court if they can come to an agreement.

Courts do sometimes agree than midweek overnight when dc are in school can be disruptive and as they are putting the dc's best interests first won't order overnight midweek contact. However there is no need for him to have the dc at her house and he should in fact try and change this if at all possible. She can't insist he stays at her house for contact (though she may try to if there is no court order and say he can't see them unless it is on her terms).

How old are the dc? Could he offer to take them swimming after school, or to cubs/scouts/brownies and volunteer to help there if he wants to spend more time with them. Or even take them to the library or soft play rather than stay at Ex's house with them. Would she go along with that? Assuming he doesn't live too far away he could then move this to having tea at his house and bringing them home afterwards.

re the weekends - do they stay overnight with him? Does he collect or drop them to school? It is quite usual for a court to order every other weekend and this often includes pick up from school on the friday and drop off at school on the monday. So if he's only getting a few hours on one weekend day he could suggest they move to school pick up on friday and overnight till the saturday. Moving to the sunday every other weekend and then in a few more months moving on to the monday if the dc are happy with this. Again it depends on how far away from ex/school he now lives.

If she resists then ask why and suggest mediation as a way of resolving the issues. If she refuses to discuss, go to mediation and starts to frustrate contact then he may well have to look at court.

Court is not a quick fix, has no guaranteed outcome and can be costly, stressful and make the situation worse between waring parents. If at all possible avoid court, but it may be his only option if she is the sort to use contact as a weapon.
He shouldn'ty be scared of it though. Court will usually order some form of contact, even abusive parents can and do get supervised contact ordered.

So start by keeping the diary of contact and trying to do things amicably if at all possible. It's not always possible though.

YoungStepMum Sun 28-Aug-11 16:53:49

Diary of contact sounds like a great idea; I'll pass that on.

It has been almost a year and a half since they separated and both have new partners but I don’t think she has introduced hers to the DCs yet.

Does a formal agreement involve solicitors?

The DCs are 3 and 5 years old. The reason why he goes round there is that she has a club she likes to attend from 6ish to 8.30pm so even if they had tea with him at his, he would have to take them back round there to put them to bed. This is why he has offered to have them stay over that one night a week. The eldest doesn’t do any after school activities at the moment which is another thing my brother is trying to push for and organise so he can take and pick up.

At the weekends he has them Saturday afternoon till Sunday afternoon. He has never picked the eldest up from school which I find really sad.

Thank you for your advice. I just hate to see my brother being pushed around and made to back down over seeing his own children. I don’t think she will budge on the midweek overnight stay – she is controlling and over protective at the best of times.

gillybean2 Sun 28-Aug-11 16:56:41

No you don't need a solicitor to come to an agreement. If you can get that agreement in writing with the help of a mediator, and if at all possible try to get it rubber stamped at court, rather than go through the court process, so much the better.

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