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Applying to change a residency order.. Any advice?

(70 Posts)
troubledmum1234 Sun 04-Aug-13 15:55:08

Without the huge (mainly boring) back story and events leading to where we are now the situation that I need advice on (please) is:

My ex and I have a shared residency order. Exactly 50/50 residency, alternate weeks. Children are both young, one in primary one due to start this September. Residency order was made Jan this year, so 7 months ago and I want to change/add a few bits. I will be representing myself as can't afford any more legal fees. Can anyone have a look at the below points I plan to put into my application and let me know what in their opinion is reasonable or give any advice with regards to what I plan to request the Judge order on. If any sound pointless, or you think I have no chance, please be brutally honest with me.

1. When the current order was put in place (by consent) I asked at court for the ex to agree to slightly change the residency pattern so the children weren't with us for full "alternate weeks" and instead had a midweek overnight with the other parent. Ex wanted a clear 7 nights at a time, his solicitor stated for him that he had changed his work hours and couldn't have them at all the weeks they were with me anda also said we lived too far apart (15miles) as reasons to the Judge. The CAFCASS officer agreed that usually for small children regular and often is best but as this was the only point we disagreed on they advised the Judge for now we should leave it as full alternate weeks with each parent. The Judge asked for us to meet in mediation and discuss and this is written onto the undertakings in the Order.

Since the Court hearing I have moved house so I am now very close (3 miles) to ex's home, my solicitor has written to him regarding midweek overnights and his work rota as April would have been the time he could have changed it if he wanted to, but we had no reply. I've also got myself an FM1 form from the Mediation Service as he refused to attend mediation despite a Judge advising us to specifically to discuss this issue. Do you think this is enough for the Judge to now order a slight change in residency pattern. In my opinion the children would be happier with seeing us both more frequently, they seem to struggle with a whole week at each home and take days to settle afterwards. They are also really missing their half/step siblings during their full weeks away. Do you think this is enough to get a Judge to agree to my proposals of changing the residency pattern slightly, so it's still 50/50 but the children not spending so long apart.

2. I have found out from the school that the eldest is being late constantly on his weeks with ex. Not just occasional, 2-3 days late for school each and every week, from the school report over the last few months he has 50% lateness the weeks he is not with me. I've contact the ex by email to discuss this, offered to change things to help him if he is having problems with the school run, even offered to drive to his and collect them school mornings so I can take them, all ignored. It seems to be the same 2 mornings every single week that he is taking him in late. Can I do anything about this? Can I ask a Judge to add into the residency order that the children (youngest also starts school in September) must be taken to school ontime regularly unless something unforeseen happens and ask that if this doesn't happen I have the children those two nights (was thinking ex could have them for the evening and drop them off to be for bedtime) to ensure their education isn't negatively affected. Or will a Judge see lateness to school as a petty thing (even though it's so regular?)

3. Our order states alternate birthdays and Christmases, but neither of us thought about New Year's. As the alternate weeks work out, all New Year's are with ex for the next 5 years. We both have large family parties and it's a big family gathering/reunion. I would like the ask the Judge to add "alternate New Year's Eve's" into the order alongside Christmases and Birthdays, would this sound reasonable?

Am I being petty and pointless? I hope not, it's really important to me and the children that we see each other more regularly, I just hope a Judge agrees this times now I have jumped the hoops the last one asked us to.


ChinaCupsandSaucers Thu 08-Aug-13 17:30:19

If there is a real concern with lateness then the school will be writing letters about it which both parents will receive

I'm still surprised that the school have been so lax about this - the level of abscence described should have been discussed with both parents, not included on the end of year report with no comment.

mumtobealloveragain Thu 08-Aug-13 19:42:37

China- me too! It wasn't even included on the end of year progress report in fact. It was a separate A4 report/spreadsheet that I had requested as DS had casually mentioned he had been going into school via the front gate not the normal gate & I thought this was odd as this means he is late and lateness had never been mentioned to me so I was curious and requested it. Had I not have I wouldn't have known.

I've double checked the report just now and it's definitely 50% late marks over the past 3-4 months during his weeks with him. However that obviously makes it only 25% overall when you also count his weeks with me. So perhaps that's below the "concern" level.

Glass- Do you really think its an over reaction? Would you be happy to know your children were being late to school 2-3 days a week, every week? Would you not want to try and do something about it? As I have said, I am not trying to cause my ex hassle or grief, just hoping I will get the midweek overnight that I feel benefits both children AND I'd like to try and stop the lateness, perhaps by (as another poster has suggested) having it as an undertaking written into the order by the Judge.

ChinaCupsandSaucers Thu 08-Aug-13 21:15:31

I just wonder whether a court will take it seriously if the school haven't; if you put it in your court application to the court and it turns out to be an error, or something they have discussed and agreed with Dad, then it's not going to help your case for other changes.

Is there any way you can delay applying to the court until you've had a meeting with the school about the lateness? They may be able to provide you with something that would support your case, whereas if it is a mistake, you avoid raising it unnecessarily.

I just can't believe that any school would allow that to slide without having spoken to the parent concerned - its just too blatant!

glasscompletelybroken Fri 09-Aug-13 08:48:06

Yes I do - you want to change the system because you didn't want it in the first place and are using this to back up your case. This is really all you have though and going to court over it when the school are apparently not concerned is an over-reaction in my book.

There are a lot of positives in the arrangement you have got. Let the children settle into it - give your ex a chance to get his act together and stop trying to get your own way.

NicknameTaken Fri 09-Aug-13 11:37:24

But it's not that dramatic - they have an order, they've been given a window of opportunity to tweak it so it works best for the dcs, why not use that window? I agree that if matters were being dealt with by the parties outside of court, there would be no reason to rush off and initiate a court case over it. But there is a court order that provides for the possibility of some adjustments to be made in the dc's best interests, that should be brought to court by a given date, so why wouldn't you go for it?

The school's concern or lack of it is a red herring - being late 50% of the time he is with his dad is quite significant.

glasscompletelybroken Fri 09-Aug-13 15:27:14

But is it in the best interests of the children to change the routine before everyone has given it a real chance? It has already been said that changing so that each parent has a mid-week visit won't help the lateness so it is purely what the OP wants.

There is nothing to suggest that either the children or the dad are unhappy with things as they are. Why should everyone elses routine be upset just because the OP wants her own way?

NicknameTaken Fri 09-Aug-13 16:27:05

But the OP has never said she purely wants the lateness to be dealt with - she wants 3 issues looked at, as she's said from her very first post.

And she's said her dcs will be happier being on time for school and seeing the other parent mid-week.

And the time-frame for making changes is dictated by the original order.

I'm don't understand the resistance - she's not wanting to tear up the order and start again, she just wants to make it work more smoothly.

[going offline now - apologies for posting and running]

glasscompletelybroken Fri 09-Aug-13 16:37:39

The OP has stated that she was not happy with the original order and is trying to build a case to change it. How quickly children settle between houses depends to a very large degree on the attitude of the parents. There will always be some adjustment period between houses and the more often the children go from one to the other the more often everyone will experience that.

This is just my opinion - it appears to me that the OP is more concerned with getting what she originally wanted rather than letting everyone settle into and enjoy what is in place.

I wouls still say that if this was a man talking about his exwife/partner like this he would be completely flamed.

NicknameTaken Sat 10-Aug-13 16:49:09

I think we'll just have to agree to differ, glass. I think the house-move does shake things up a little bit, and I can't see that the proposed changes significantly disadvantage her ex.

I can't speak for others, but I wouldn't flame a man in this position - as I said before, it would be different if it meant launching a brand-new court case over it.

mumtobealloveragain Sun 11-Aug-13 19:09:55

Thanks all for your replies. I do think China is right, I should wait until they school opens again to double check the accuracy of the lateness/sickness report but it's unlikely as it is totally correct for the weeks they are with me. But best to check so I can avoid looking like a complete fool in the unlikely event it is wrong smile

Although the residency order was only made in Feb this year, alternate weeks was in place before then, so I have given it plenty of time to see if it works. There's a lot more to it all than what's here. Other things such as although we both have friends and family helping with the children he has told me recently that they children are being looked after by a friend of his (not a relative) two evenings a week- the same two school nights each and every week by this friend who collects him from school, and they go to her house for tea and ex picks them up from he house after work (6:30ish) and takes them home for bedtime. Whilst I appreciate I do not have the right legally or morally to object about who helps him on their weeks with him (as he doesn't on their weeks with me) but I do object to him saying he won't agree to me having the children one midweek night a week during "his" weeks when on two of those nights he only sees them to take them home and put them to bed sad Just seems a bit "mean" I guess,the kids have only know this friend for about a year or so and she has no children of her own, so I can't see any reason why on one of these nights they can't come home to my house instead. I didn't know this when we were at Court in Feb, so it was never mentioned, ex just said he had used his right to flexible working to ensure he "hardly works" the weeks he has the children he didn't mention the two nights every week he doesn't see them til bedtime.

Also, when he objected to midweek overnights the Judge suggested midweek phone calls in the meantime. This is in the Court Order to be the same day and time each week- just 1 call per week. Since Feb I have ensured the children called him as per the order every week they are with me. He has made perhaps only 70% of the calls, the other weeks he just doesn't bother, no warning or explanation and lots of the calls he HAS made have been much later than the Court ordered time. So sometimes I'm sat waiting for the call for 45mins before they call, wondering if they will call at all. If I miss the call (has happened a couple of times when he's been late calling) he will not let them call again or answer if I call him to speak to them. So if I miss the call I miss my one and only chance to speak to them for the whole week. So I sit waiting by the phone and he must know that.

So, I think I have decided:

- To wait til September to make the application and speak to school first to check the lateness report's accuracy. Also to ask if they have spoken to my ex or not.

- I will be representing myself and therefore completing the C100 myself. I just can't afford legal fees.

- I will bring the "midweek overnights" issue back to Court. Stating in my application that he has now refused mediation (which he agreed to attend when we made the residency order) and which the Judge insisted was added as an undertaking in the order. I have attended a mediation session and obtained an FM1 to prove he refused. He has also ignored my solicitor's letter to discuss midweek overnights and try again to arrange mediation (sent a few months ago now). I will mention that he isnt making tbe Court ordered midweek calls and the children aren't even with him on 2 of the afternoons/evenings that he refuses to let them come to me so I propose they have a midweek overnight with me on one of those days.

- I will also add the issue of persistant school lateness to the C100. Stating 50% lateness the weeks they are with him and providing a copy of the school lateness report to probe this. I plan to ask that an undertaking is added to the order that states my ex should ensure the children are taken to school on time unless there's a specific reason or problem (everyone has issues/ the odd lateness) I just need to ensure they are taking on time regularly rather than late 2-3 days every week! Hopefully having it written into the order will get him to realise its important to ensure they are at school on time and he will buck his ideas up.

bibliomania Mon 12-Aug-13 09:18:41

Sounds like a plan! (name change from NicknameTaken).

I think it would be worth a call to the court clerk explaining that the court order gives a certain date to bring the matter back, but you're going to be late because of the need to get further information from the school. I think it makes sense to show that you're operating in the framework of the current order (ie. the date for review) rather than trying to re-open matters that would otherwise be deemed closed.

mumtobealloveragain Mon 12-Aug-13 11:31:11

Thanks Biblio - I will do that too. I haven't been able to work out the specifics of the bit in the Order the Judge added about "leave to return the matter to Court within 6 months" as I know anyone can apply to change or tweak a residency order at any time, but calling and explaining can't hurt. Ultimately, it was a "by consent" order to we actually agreed on all the points, neither of us was "ordered" to do anything.

It's the first order we've had and I don't think he realises he NEEDS to keep to things he sees as trivial such as the once a week phone call. To me, it's really important as otherwise I go a whole week without speaking to the children, but he isn't that bothered about the call when they are with me.

ChinaCupsandSaucers Mon 12-Aug-13 11:43:44

mumtobe Ultimately, the order is about what the DC's need - so if the court is assured that it is not detrimental for them not to speak to the other parent, then whether or not you want to speak to them won't be considered.

There are arguments for and against regular phone calls to the other parent (and I'm fairly sure that research has been done in the US, too) - a great deal depends on the content and nature of the calls and demeanour of both parents. Phone calls often cause a great deal of angst, but in my experience, DC's only miss them if they are somehow led to expect them, or feel obligated to make them.

mumtobealloveragain Mon 12-Aug-13 14:58:27

China - Yes of course, I understand the residency order is about what is best for the children and if the calls upset them then I would have to "suck it up" and accept that they won't happen.

However, it was never something I insisted on, it was something the Judge suggested when my ex refused midweek overnight contact. The Judge asked us both to agree to attend mediation to discuss/negotiate midweek overnights and in the mean time he would add to the order 1 midweek call per week. Ex even picked the time and day that was to be written into the order to ensure he was free to get hem to call around his working hours and I just agreed to try and make things as easy as possible for him.

I don't believe daily calls are necessary, I'm not one of those parents who insists I need to speak to the children every day to "check" they are ok. I do just let my ex get on with parenting and enjoy their time there, but a whole week not speaking to your children (or for them not speaking to mummy or daddy) when they are so young just can't be good for them. The Judge asked us to agree to Skype (given their young ages) but ex declined saying he would prefer phone calls, which I agreed to thinking it was better than nothing.

ChinaCupsandSaucers Mon 12-Aug-13 15:22:34

mumtobe I assume as it was an order by consent that CAFCASS haven't been involved so far?

I wonder whether a re-application to the court would lead to an order for a "wishes and feelings" report for the court before they make any amendments? Was this mentioned at all?

The courts do seem to place a great deal of weight on the words of very young DCs - my DSC were 5 and 12 when they were interviewed a few years ago; DSD has since said that she hated the responsibility that it placed on her sad

bunchamunchycrunchycarrots Mon 12-Aug-13 17:18:01

What evidence do you have that the long spells between contact aren't good for your DC? How is their distress/harm manifesting itself, and how long has this been the case? Was it evident prior to the last court hearing? How did the judge view this evidence? What further evidence do you now have that will add weight to your previous submission on how the week about arrangement, with no mid week contact, is detrimental to your DC's welfare?

Reading your posts, there is a lot of what you want, and what you think is right, but very little in the way of how this set up is having an adverse effect on your DC. How late is 'late for school'? 5 mins? 10? 45? In what way is this impacting your DC's education? Does the school report address this?

Missing step siblings isn't really something I'd consider 'trumps' the other parent's time with your DC, and don't imagine a court would consider awarding more contact in your home on that basis. Then again, I'm not a lawyer so I've no idea if that argument holds any weight.

70% of mid week calls having been made - I'm pretty sure your ex could come up with plausible explanations as to why this hasn't happened on occasion, especially with young children. I tend not to call my DD when at her dads as she just gets upset and wants to come home. If I don't call, it doesn't enter her head to get upset or want to come home.

Childcare for your DC while on his week is entirely his prerogative. I would not rely on my ex for childcare. It creates a situation whereby you give control of your own life over to someone else, and if as appears in your case you don't get on, that just causes more conflict IMO.

I'm not legally qualified but from reading this thread, it doesn't appear to me to be worth the additional acrimony to go back to court over these issues. But I guess that's your call to make.

mumtobealloveragain Tue 13-Aug-13 14:54:18

Thank you for your advice - crunchycarrots!

This is it, I suppose I don't have any hard, tangiable "evidence" to present to court as such. The children are bright, happy and doing well. They are not having therapy or anything like that.

I do know they'd prefer to see us more often (that is my ex as well as me) which is why I want more frequent contact for us both if possible, that's what I originally proposed in Court at the start of this year. He said he can't see them during their weeks with me as he is busy working and therefore they shouldn't come to me as that will unbalance the 50/50 arrangement by 1 day. The children often count down the days til handover day, get quite upset and "over emotional" on handover days, get a bit clingy etc. It's more about how they are, the things they say and the way they act that makes me 100% believe that they'd be happier and more comfortable with more regular contact. How I show/[rove that to the Court though, I don't know. Ex has agreed that they often really miss me (as I have told him they do him) and that he thinks they find a week a very long time, but he won't agree to change it.

They have step siblings who they miss greatly as of a similar age (ish) and soon will have a new baby brother or sister, I think that will make the week at a time arrangement even harder for them. I'm not expecting the Judge to award me more time with the children, just more regular contact and ex would have the opportunity to have the same in return.

As for the calls, they are a specific point in the Court Order. he even picked the day of the week and the time for the call (I wanted it to suit him so he was less likely to not do it). Other than that 1 call he will not accept me calling him at all during the week the children are with him, so I have no other communication with them for a whole week. Even when he does help the children make the 1 Court Ordered call he refuses to allow them to speak to me and then their step siblings he hangs up if they try and have a chat with them, he says the calls are only for me to speak to the children, whereas surely a few minutes talking to their siblings wouldn't hurt him? I'm not expecting extended calls, they are only young so don't stay focused long, maximum call has probably only been 10 minutes, usually less.

HeliumHeart Tue 13-Aug-13 15:29:12

I find this thread quite upsetting. Why should any parent refuse something just because it upsets a 50/50 balance? This is not about mathematics, this is about children who will not have precise needs that fit into a box.

I cannot see how it can be good for children to learn that each parent is only available one at a time - to all intents and purposes, the other parent just doesn't exist when they are not staying with them.

OP, I wish you luck in sorting this out so that everyone is happy.

bunchamunchycrunchycarrots Tue 13-Aug-13 16:07:49

HH it reads to me that the DC are thriving despite the current set up, and that's where the OP seems to be in difficulty. While the OP might struggle not speaking to the DC for a whole week, the DC themselves don't appear to be badly affected by it. I'm not sure another court case will result in any improvement for the DC, given the increased acrimony that will undoubtedly create.

But as I said, I'm not a lawyer so maybe I'm talking out of my backside smile

HeliumHeart Tue 13-Aug-13 16:46:57

I know where you're coming from. But just because children don't display an overt problem with something doesn't make it right - children are very adept at going along with things, trying to fit in, trying not to upset the status quo. My brother spent years being carted between my parents house without complaining once. It was just 'what he was like' - and he hated to cause anyone any upset. Actually it traumatised him and he would probably still say now they were the worst years of his life.

I do not believe that children should be split like other possessions. There is plenty of evidence to back that up too - you do NOT need to spend equal time with parents to have an equal relationship, or to feel a maximum amount of security as a child growing up.

I am hacking my way through a dreadfully acrimonious divorce, can you tell this is one of the big issues we're facing? sad

mumtobealloveragain Tue 13-Aug-13 19:47:10

crunchycarrots - Yes, I see your point. They aren't "suffering" as such, but kids are so flexible they sort of accept they have to just adapt to whatever situation they are placed in don't they, doesn't always mean that it's best for them or they wouldn't be happier if it were different. We could probably change to two weeks at a time at each house and they still wouldn't show any signs of "suffering" but I know they'd miss us both deeply. If that makes sense. By no means am I claiming they are being abused or mistreated at his place, just that a simple "tweak" could make it better.

Helium - My ex loves 50/50 and is obsessed about things being exactly equal. I've actually just found a text from him I kept from last year (before we went to court) in which he states his reason for no midweek contact are: A. He hardly works the weeks they are with him, so for them to come to me one evening he would have to give up time with them. B. He can't have them one night during weeks with me so it would "work in my favour" (his exact words) and I would have them one extra night and they might think it's cause he didn't want them. Well I've since found out he actually doesn't have them himself 2 afternoons and evenings until nearly bedtime, so his whole argument doesn't really stand up. I am thinking of reading his text out at Court in the hope that I can get the Judge to see his reasons for not wanting the children to have midweek overnights it silly and all about what he sees as fair for him not about them. I was always under the impression alternate full weeks was unusual for young children and worked better for older children and therefore Judges and CAFCASS liked to see more frequent, shorter periods between contact.

Yes, as you've said, it's as if the other parent must not exist when staying with each of us. I do talk to them about their life at their dad's, mention things, discuss, etc but they have told me he doesn't like to hear about their time here. They are not allowed to call me during their week with him and he will not accept calls from them during their week with me. We had a family event recently (wedding) that fell on "his" week and he refused to let them attend. He said they could only come if they attended with him (was a member of my family's wedding) and it would have been oh so very awkward if he was there, in fact I don't think they would have said yes as he's been really argumentative and rude in front of them before and they wouldn't have wanted to risk him ruining their day. He didn't have any other plans for the children that day but just said it wasn't fair for me to have them an extra day. ONE extra day, in order for them to celebrate a family event and have a nice day, in the grand scheme of things ONE day is nothing sad This was a one off occasion, I don't usually ask him to have them any extra days at all.

mumtobealloveragain Tue 13-Aug-13 19:54:38

Sorry China, I missed your post before and didn't reply.

CAFCASS were "involved" last time, sort of. The officer present at the hearing had telephone contact with my ex before the hearing but hadn't "had chance" to speak to me. I was presented with the report he made from what my ex had said and it was very "interesting" shall we say. The CAFCASS officer had a very quick chat with me at Court before the hearing and said he picked up on my ex being very "bitter and resentful" of me, how I had moved on and my new partner.

He didn't say much at the actual hearing. The Judge seemed to nod and agree with my proposals for midweek overnights but once ex disagreed the CAFCASS officer said that as we had agreed the majority of points and alternate weeks seemed "clean cut" to him we should perhaps have what we did agree put into the order and the Judge said we should go to mediation to discuss midweek contact. It felt to me that CAFCASS officer didn't want the extra "hassle" perhaps and as we mainly agreed (things like alternate birthdays, alternate Xmas's etc)it seemed to be good enough and not worth a full contested hearing over what he saw as a minor point. My solciitor has since said she was shocked at his recommendations and comments about alternate weeks being "clean cut" as in his experience CAFCASS like regular frequent contact and tend to frown upon young children spending long periods away from wither parent, especially in shared residency cases. He has lots of experience in family law (15+ years, so I trust his judgement). He said returning to court may mean we get a different CAFCASS officer who has a more "usual" idea about what is best for young children.

ThatsNontents Tue 13-Aug-13 20:32:21

So do you want to do:

Saturday, Sunday, Monday, Tuesday overnight with dad.
Wednesday overnight with you.
Thursday, Friday with dad.

Then swap? Doesn't sound too bad.

I also think that the other parent should get first call on looking after the children if the parent who is supposed to have them can't do it.

We've always done this, I'd be pretty pissed if someone else was looking after our children when I'm available.

mumtobealloveragain Tue 13-Aug-13 22:18:52

Sort of Nontents.. We currently do Mon-Mon alternate weeks. Ideally I'd like

Mon -Weds night with dad
Thurs night with mum
Fri-Sun night with dad

(then reverse on their weeks with me)

I previously suggested offering the other parent first choice for looking after the children if the parent they are staying with can't (substantial periods of time and regular times only, I don't mean the odd few hours) but he refused. He said he can't have them anytime during their weeks with me and didn't want them spending more time with me than him. So every Weds and Thurs afternoon on their weeks with him they are collected from school/pre school by his friend, taken to her house for tea, and stay there until he collects them and takes them home to go to bed. His friend lives very local to where I live and doesn't have any children, isn't related to the children and they don't really do much there apart from watch tele and play in her garden, she has no children so it's not like they are spending time with their friends either. That's every single term time week, yet he refuses me a midweek over night with them because he will lose time with them - it just doesn't make sense. They could be here with their mummy those nights sad

Do you know if Courts go for this "right of first refusal" or is it seem to be too controllong over the other parent's time with the children?

bibliomania Wed 14-Aug-13 09:31:58

My ex asked for a "right of first refusal" to take care of dd if I need to go away overnight for work etc, and I agreed. I'm not sure whether the court would impose it against the other parent's will (that parent might have good reasons to do with convenience and cultivating relationships with extended family), but I think it would be interesting to ask for it and see what your ex's response is. From what you say, he really seems to be motivated by blocking you from having any more time than he does, and I can't imagine a court being very impressed by that.

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