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Rights under a residence order(5 Posts)
(Writing this on behalf of a female friend of mine) Her ex husband was granted a residence order for her children and the children have been living with him for the past three years.
They are now 8 and 11 years old.
He has remarried and my friend has been excluded from important decisions regarding her childrens upbringing.
Her 11 year old daughter has been visiting secondary schools to decide where she would like to go. My friend asked to be involved, but was excluded. I recently heard that they have applied for her daughters schools without consulting her...something she had expressly asked them to do.
She also found out last week through her children (not her ex husband), that her ex and his new wife have adopted a new born baby last week and she's joining the family next week. My friend was not even notified of this and is concerned how it will affect her children because the past 6 months her ex has said they have been struggling money wise and time wise.
My friend hasn't appealed the residency of her children as up until now she did not believe it would be in their best interests to move them out of their school and the town where their friends are. However, she now appreciates she may need to consider this.
Please can anyone advise what options are available. She has spoken to a family solicitor who says the only option is to go to mediation or for full custody/residence. The ex refuses to attend mediation, and my friend doesn't want to put her children through the stress of court proceedings. Is there some kind of legal middle ground ?
The kids wouldn't actually go to court.... They would have a chat with a CAFCASS officer though. Shouldn't be at all intimidating for them.
From our experience, we could not apply for residence unless we could prove the resident parent was abusive or unfit. Well we could, but it would have been £££££ to the solicitors with no kids at the end of it, and a nightmare.
the children were younger though (under 7), so it might be different if they're able to voice their opinions.
So I'd say your first stop is a family lawyer, talk it through with them.
Kids are late teens now and we have never had a say in medical treatment, schools, been to school plays or open days. We're just completely shut out of decisions, and nothing we can do.
When she's 13 or so she can choose with whom to live. I have a friend who deliberately did not leave his cheating wife until the youngest child was 13 and old enough to decide. The children stayed with him in the family home and the mother moved with her lover.
Why not talk go the 11 year old about the possible schools. The choices being made may be fine.
It may be she can start the court proceedings and that might lead the ex to agree a compromise. What is she really after? more time with the children or move them fully to her or just more influence on decisions like school? People do go to court over schools. I remember one court action - one parent Jewish other atheist and whether the child should go to Jewish schools or not - a lot of money was spent on lawyers on both sides and time in court deciding what was best.
The fact that your friend's ex has a residence order doesn't change an awful lot. By and large it is a label.
You say she has been excluded from important decisions but it is important to remember that a residence order does not confer the ability of the resident parent to do this. Your friend will have parental responsibility which means she has a right to be involved in her childrens' education, health, etc. and courts generally will not be impressed that she has been excluded.
As a holder of PR she has a right to be `consulted'. It is important to realise that this has limited value - a non resident parent being told about these decisions would arguably be described as being `consulted'.
I would disagree with the solicitor's advice you mention. There is no such things as `custody' or `residence' and in my experience your friend would be very unlikely to get a court to order that a child live with her.
If her ex will not attempt mediation she cannot make him. She should consider carefully what she wants to achieve. Assuming it is more involvement in her childrens' education it may be better for her to contact the schools, doctors, etc. directly advising she has PR and ask that she be sent information about school trips, medical information, etc. Do not be surprised if she is told they cannot do this because they have been told not to/she isn't allowed/she need's her ex's permission.
She has PR. The only way she would not be permitted this information is if there is a court order specifically stating this.
I would also recommend she joins Families Need Fathers. We have an increasing number of mums who are dealing with this situation which has usually been more familiar to dads.
Hope this helps.
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