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Custody advice needed - think I've been badly advised

(18 Posts)
makedoandmend Mon 17-Oct-11 08:18:26

I'm currently getting a divorce after husband walked out 10 months ago. We have a two/almost three year old dd.
On my first visit to my solicitor I asked about custody and she said 'we don't really talk about custody anymore it's about shared parental responsibility'. I thought that, in that case we would have to share custody even though we weren't sharing all responsibility.
I've really worked hard to maintain good relations with my ex (hard as he dealt with guilt by hideous defensiveness - it was often remarked by others that you'd have thought I'd left him). And I've tried to find a solution for both of us. I'm really not the bitter ex wife - I've even met the girlfriend for a chat to try and make things easier all round for our dd.
He is trying hard now as well but has reneged on his promise to live in the same town - and is moving 10 miles away with his girlfriend. At the moment he picks up dd from my house for the CM three days a week and I pick her up - this was easy when he lived up the road - obviously it'll be trickier when he moves and he's trying to change his working hours - if he does he'll pick her up twice a week and I'll do the rest. I look after her the two other days (I work part time). We alternate weekends.
He tries hard as a dad and has learnt a lot in the last 10 months. But when we've talked about shared parental responsibility (because I thought this was my only option) he's become angry at the idea of us having to consult each other on important things: "What's the point in divorcing then?". He is a very difficult character and I worry that we'll be in mediation all the time. He also presumes I'll do most of the childcare as 'that's what mum's do' and has accused me of not wanting to be with my child when I've wanted him to do more in the past.
He also has a very young girlfriend (26) who wants children. I just think me having custody as the residential parent who will stay close to our dd makes sense. I'd never deny him his rights and I can't see it would make much sense to him practicality.
Sorry I've not explained myself very well. I wish I'd never mentioned shared parental rights to him - if I now mention anything else he'll go nuts (he's a 'throw toys out the pram then calm down' type of person')
I just feel sick about this.

Collaborate Mon 17-Oct-11 09:24:58

Don't attach labels to it all. If you agree where your child should be at any given time that's all there is to know. You both remain parents and should be invloved in all major decisions.

Booooooyhoo Mon 17-Oct-11 09:30:55

well your solicitor is right. the courts dont use the term custody anymore. what you are talking about is residency. i really feel for you. he is being very awkward and it seems to be for selfish reasons (not wanting to do childcare for his own child) i'm not sure what to advise really. could you go back to your solicitor and explain how your ex is being and ask where that leaves you WRT residency?

makedoandmend Mon 17-Oct-11 09:38:55

Thanks for replying.
I understand that - and that's lovely in theory but the divorce form mentions 'shared parental responsibility' as a completely separate thing. If I don't tick that box he's going to ask why. Also he's already told me that if I really didn't want him to do something with dd 'he'd do it anyway- I don't care what you think' - it doesn't bode well for us talking through decisions. Throughout our marriage we could never had a proper discussion as he'd get angry at the slightest sign of anyone criticising him - even if it was put in the most benign 'therapy speak' going. He takes any criticism as rejection (his parents did a real job on him). It's so bad that I worry that when dd is older and going through the 'You're a bit dull and embarrassing stage' he'll not be able to handle it. He even took it personally when our cat went to a new home and ignored him sad

What I really want is someone to explain to me what are the basics for shared parental responsibility - not the theory but the actual part of law.

makedoandmend Mon 17-Oct-11 09:44:38

Thanks Boo - my solicitor is, unfortunately leaving to go travelling so I've got to start all over with a new solicitor (it would have been nice of her to tell me this on the first meeting!)

I think I'm a bit all over the place in my understanding of this - maybe it's time for another trip to my (new!) solicitor - it's just at £200 an hour I'm annoyed that it wasn't explained more clearly at the beginning. She seemed a bit bored when she realised we really didn't have any money to contest (he's getting the house in return for him taking on a large loan we have) and it was going to be (supposedly) a 'cheap' divorce.

Booooooyhoo Mon 17-Oct-11 12:03:00

i think your solicitor has let you down TBH. i agree you should find a new one (not that you have much choice!) from what you said it looks like this is going to be a continuous battle with your EX over pretty much everything. i would recommend mediation definitely so that you are talking with an impartial person there. it might help him see that his reactions to 'criticism' (what he sees as criticism) aren't normal. i wish you all the best, and hope someone more knowledgable WRT the legal aspect comes along soon. sorry i cant be of more help.

mumblechum1 Mon 17-Oct-11 20:03:44

The thing is, OP, that there is a presumption of no order. In other words, the courts don't want to get involved in day to day squabbles between parents unless they absolutely have to. This is basically down to the idea that parents are grown ups and should be left to make the arrangements for their children without solicitors and courts getting involved, which often makes things more heated and a lot more expensive.

If you made an application for a residence order, the court would have to consider whether it was in your dc's best interest to have a bit of paper saying that you look after them day to day but they see their dad regularly. In most cases where there is no serious dispute (ie he isn't trying to get residence), the court would say that the presumption of no order will apply.

Mediation is often very helpful but you both have to make it work.

What exactly is it that you are looking for in terms of court orders etc?

mumblechum1 Mon 17-Oct-11 20:05:08

On the PR front, btw, because you're married, you both have equal PR. What that means in practice is that your h has to be consulted on major issues such as education, medical treatment, religious upbringing etc. It does NOT mean he gets consulted about what she has for lunch, whether she does ballet or swimming.

makedoandmend Mon 17-Oct-11 20:49:57

Thanks mumble - I'm not looking for a court order. It's just having told him that I'll be going for shared parental responsibility but on the divorce form it's clear that this isn't the 'norm' which is what I've was told so he'll question why I'm not going for it.
I'm not looking to cut him out or restrict him in any way with dd - but dd will be resident with me so I don't want to have it as part of the divorce that we'll be sharing residency because we won't be.
I'm really confused - I think my solicitor used the term 'shared parental responsibility' without really thinking.

Collaborate Mon 17-Oct-11 23:17:13

There's no such thing as "going for PR". You both have it anyway. You might as well just have reaffirmed to him the fact that you'll both continue as parents and will parent your child together.

When you lodge the divorce petition you'll have to complete a statement of arrangements for children form that inter alia states with whom the child will be living. He'll have the chance to approve or challenge those proposals, but in reality in most cases it's not just a proposal but a statement of fact.

mumblechum1 Tue 18-Oct-11 07:53:18

Basically, OP, you seem to have got the wrong end of the stick. As Collaborate says, you already have shared PR, for want of a better expression.

prh47bridge Tue 18-Oct-11 09:46:05

I have no idea which form you are talking about. Neither form D8 (Divorce petition) nor form D8A (Statement of arrangements for children) mentions PR. But I have to agree that you (and, from the sounds of it, your ex) have got the wrong end of the stick.

Your husband already has parental responsibility whether he likes it or not. He will not lose PR as a result of the divorce. This means he has the right to a say in the kind of things mumblechum1 listed yesterday. It does not mean he has to exercise that right. If he is happy for you to make all these decisions on your own there is no problem with that.

makedoandmend Tue 18-Oct-11 20:02:43

Thanks to everyone who replied. My solicitor rang today and finally said everything she should have said in the first place. She was so vague in her use of terms in our last meeting that she completely led me up the garden path. I'm used to dealing with quite tricky concepts but she'd managed to confuse me totally.

Just for those saying that there is no mention of shared responsibility on the Statement of Arrangements for Children - there is - it's part 6a. Most people go for residency and contact, but some go for shared responsibility which is when the child lives half/half at each residence. That's where the confusion arose. So I'm not completely mad/stupid etc etc I just had a solicitor who kept using terms such as 'shared parental responsibility' both as a descriptive term and as a concept - when they actually mean different things.

Tyr Wed 19-Oct-11 00:04:03

OP,

You are referring to Shared Residence, not responsibility.

STIDW Wed 19-Oct-11 04:30:16

Shared residence can be living in different proportions with each parent it doesn't have to be 50:50.

catsrus Wed 19-Oct-11 20:13:09

I think you have confused yourself OP

You are talking about shared residence on the form - not responsibility. If your dd lives mainly with you then you are the "resident parent" - that does not take away the fact that your ex still has parental responsibility.

If you tick the shared residence box the court will assume time split 50:50 and could affect any maintenance payments you might get for dd if you were the resident parent

STIDW Wed 19-Oct-11 21:05:35

But there isn't a shared residence box or part 6a in the Statement of Arrangements, is there? confused

prh47bridge Wed 19-Oct-11 21:33:06

A private conversation has revealed that the OP had been given an old version of form D8A which was adding to the confusion.

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