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Residence dispute with ex H: am I going to be reduced to 1 weekend per fortnight?

(290 Posts)
agingoth Fri 25-Sep-09 22:28:11

Hi all. I am getting divorced and we are about to go into mediation. H put the petition in which I am going to accept.

My big worry is losing main residence of the kids. We have spent a year separated in London doing strict 50:50 custody. H insisted on staying in the family home so I left as the atmosphere was so terrible and went to live in a flat 10 minutes away, the kids being with me strictly half the time. I was very depressed and didnt' have much fight in me at that point.

I work a long way from London in the North Midlands and now want to take the children with me up there where I think they would have a better standard of living. H is adamant they must stay with him because 'this is their home' and ds1 is settled in school (he is in year 2). My 2 year old is not yet in nursery. They have a nanny four days a week.

I have Mondays off to look after them but have to go up to Stoke 2/3 days a week at the moment to work. If they came to live with me nearer there I would be able to finish work about 4 to be with them. At the moment if with H they are with the nanny until 7pm.

i have offered H every weekend promising to get them down to London to him and more time in holidays. He said no and insists they must stay in SE London and attend the school.

Is he being reasonable? Or am I deluded in thinking I can take them out of London/school?

thanks

HecatesTwopenceworth Fri 25-Sep-09 22:34:06

You should talk through your options with a solicitor.

BitOfFun Fri 25-Sep-09 22:41:52

Definitely see a solicitor darling- it is ESSENTIAL.

edam Fri 25-Sep-09 22:48:06

I don't think your H is being reasonable but I'm not a lawyer - you need to talk to someone who is. Good luck.

mmrred Sat 26-Sep-09 23:02:21

Well, lets look at it from a different perspective. You've been doing 50/50 (respect) so actually, neither of you has 'main residence' of the children. You have equal rights and responsibilities to them.

Imagine then, that H decides he can offer a better standard of living by moving several hundred miles away. He offers you every weekend. Would you feel that was reasonable?

If you go to a solicitor, I guarantee you they will say you have a great case and you'll be able to move the kids. The less scrupulous will tell you to just move and let him take you to court. (Again, imagine how that would feel if he did it.) That's because they earn more if the case goes on for longer. So causing protracted fights, bitterness and acrimony is in their interest.

Honestly? You (probably) would win a case in the family law courts (because despite what people say, women still have an advantage) but it will be expensive, protracted, and will poison your relationship with your ex to a degree that you probably haven't considered. You may not, though. Having a child settled in school with an established 50/50 would be a powerful point in favour of staying (and rightly so, really)

If I were you? I'd find another job closer to home.

Snorbs Sun 27-Sep-09 00:02:10

I think mmrred has the right of this - you might get a court to agree with you but it's far from guaranteed given the circumstances. I'd not risk it, to be honest.

You're asking for a substantial change of situation for the children and significantly less contact with their father but for little obvious benefit. Sure, it makes your life easier as you'll have a shorter commute but a "better standard of living" for the children would be more difficult to demonstrate.

Moreover, your offer of getting the children down to see him every weekend seems unworkable in the long run. Stoke to SE London is, what, three or four hours by car? So you'll spend (say) Saturday morning bringing the kids down to London to stay with their dad, he'll then have them until (say) 3pm on Sunday and then you'll drive them back to Stoke in time for bed. Is that the kind of thing you were thinking of? When/where will you get to spend some quality time with them?

Taken as a whole, then, and from an outsider's point of view, it seems clear that the best choice for the children would be for you to get a job nearer to where you live now. Would that be possible?

echofalls Sun 27-Sep-09 00:05:46

I agree with mmrred...good sensible post

mumoverseas Sun 27-Sep-09 06:08:33

agree with most of what mmrred and snorbs have said. If at all possible, you should try to move nearer to where the children are now.
there are absolutely no guarantees in residence cases and it is not true to say that the mother always/nearly always gets residence. I've known a few cases where the father has had a residence order made in his favour. It all depends on the circumstances which are obviously different in every case.

Also, with regards to you offering your ex every weekend, that really isn't a sensible long term option. If you are working full time, surely you will want to have some quality time with the children at weekends? What about when they are invited to parties at weekends by friends in the area (assuming they are living with you). What then? Are they going to be unable to go to all parties they are invited to?

mmrred slightly suprised by your comments regarding solicitors. How can you guarantee that a solicitor will say the OP has a great case etc etc. It is simply not true that if a case becomes contested and goes to court the solicitor will earn more. That is not the case at all. The firm will bill more but the lawyer dealing with the case will not personally benefit as most lawyers are on a set salary and therefore do not get paid for more taking a case to court. The only exception is of course if they are an equity partner then in the long run they will get more but the majority of lawyers dealing with these type of cases are salaried.
You paint a very dimm view of lawyers which is quite sad as the majority do put the clients best interests first.

mmrred Sun 27-Sep-09 09:45:16

I do have a very dim view of lawyers, mumoverseas. Although I'm sure there are some individuals who are moral and upstanding, my personal experience is that they say (and do) whatever they can to fuel disputes. Courts are arenas of combat, and not at all suitable to resolve most family disputes, so perhaps it's not their fault.

Doing whatever is in the best interests of the client (in this case, a mother who wants to move the children away from their father) is not the same as doing what is in the best interests of the children.

However, Agingoth could put it to the test for us by getting some free legal advice and telling us what they say.

mumoverseas Sun 27-Sep-09 09:55:24

I have a very dim view of ignorant people who tar everyone with the same brush.
I think you'll find there are quite a few family lawyers on here (myself included) that will be very unimpressed with your ignorant comments

PfftTheMagicDragon Sun 27-Sep-09 10:01:22

I think that you need to seriously consider getting a job in London or close to it. You would not have to move your children at what must be a terrible time for them. Please do not move they away from their father if you do not have to, there are so many stories on here of absent fathers who don't give a shit and here we have one who is actually dealing with the responsibility of his children and you want to move away!

oranges Sun 27-Sep-09 10:11:34

Mum overseas - I don't think mmred is on this forum to try to impress family lawyers, and calling her comments ignorant isn't going to change the perception that lawyers and courts are combatative!

GypsyMoth Sun 27-Sep-09 10:19:23

What has your ex said about the proposal with regard to what he see's happening? Does he want you to see kids every other weekend?

I think he would be in a good position to file for a pso to keep your ds in school. And maybe to keep the nanny? Surely with children so young there is enough upheaval already?

mumoverseas Sun 27-Sep-09 12:55:12

It should be remembered that going through Solicitors/Courts is a last resort and the parties should of course attempt to resolve matters amicably between themselves first.
In this situation, the OP has said that they are going to mediation and therefore hopefully they may well be able to reach an amicable agreement which is in the best interests of the children and which both the husband and wife can live with. Obviously in matters such as residence disputes, there are no 'winners and losers'

agingoth, I hope that you and your H are able to resolve matters in mediation, however, should this not become possible and you feel you need to instruct lawyers, then I would recommend that you consider instructing lawyers who are members of 'Resolution'. These are lawyers that agree at the beginning to attempt to resolve matters as amicably as possible for the sake of the children and both parties (if they both instruct Resolution members) must agree to this course of action and sign an agreement setting out that if an agreement is not reached and court proceedings are issued, then both parties will have to instruct new solicitors as their existing ones will no longer represent them. This tends to focus the parties minds and deter spontanious court applications that they may sometimes be tempted to make.
Obviously, it is not always to resolve matters without Court proceedings, particularly in childrens matters, but as stated above, this should be a last resort.

Please also be aware that if proceedings are commenced and are contested, this will be a very long (yes, and expensive) process and it will clearly have an effect on the children so please try to resolve things if possible without issuing proceedings.
As many have said, is there any way that you can find a more local job?

Such a shame that so many of you seem to have extremely negative views on lawyers and yet still seek their free advice on a regular basis hmm

ilovemydogandmrobama Sun 27-Sep-09 13:17:55

I would go to mediation and then make decisions about what to do. The benefit of mediation is that you and your ex make the decisions about the children, rather than a judge, who doesn't know them and there isn't the advantage of discussing options.

It seems to me that you both agree about doing what's in the best interests of the children, so it's working out the logistics.

If the children effectively have been living with both, then would it be unsettling for them for this arrangement to change?

Then again, they are young, and obviously would adapt.

The nanny issue is tricky. In other words, he isn't spending time with the children, when they could be with you?

Hope you can all work out a solution that works for everyone. smile

ilovemydogandmrobama Sun 27-Sep-09 13:21:22

Oh, and wanted to mention that you really shouldn't have to make all the compromises. Your ex doesn't get to make all the decisions about the children and he seems rather inflexible. Hopefully mediation will help you both, but seems that you have made all the concessions so far.

catinthehat2 Sun 27-Sep-09 13:57:06

Mumoverseas, are you really really really a qualified practicing (or formerly practicing) solicitor/barrister, because you certainly don't come across like any sort of professional normally on here.

I'm distinguishing between someone working/having worked "in" an area and someone "qualified in" an area.

The reason I am asking is that your 12.55 post goes into somewhat technical detail designed to influence the OP's actions. If you are not qualified to dispense that sort of advice (notwithstandign the health warnings on the 'Legal' topic), it would be fairer to stand back.

I find quotes such as "I have a very dim view of ignorant people who tar everyone with the same brush" surprising in this context.

ilovemydogandmrobama Sun 27-Sep-09 14:01:07

<<stands behind Mumoverseas>>

Hang on! She isn't giving any specific advice. She is giving rather general advice about resolving issues amicably with a Resolution solicitor. That is hardly technical detail designed to influence the OP's actions. hmm

What a weird thing to comment.

AnAuntieNotAMum Sun 27-Sep-09 14:08:40

As I have posted on other threads, not always with approval from others, taking children away from the area that they are schooled in every other weekend, let alone every weekend is very hard on the children. It means that they constantly miss out on social events connected to school friends or social clubs, such as birthday parties, sports events, plays, concerts. This was my experience as a child of separated parents - perhaps you had a better experience and disagree, I don't know...

What better standard of living will they really have being ferried up and down the country weekly? It would be so much better for them if you and their Dad could stay living close by.

mmrred Sun 27-Sep-09 14:20:15

I have no wish to hijack agingoth's thread with a row about lawyers. I did make clear that my view was based on my personal experience.

I was a little surprised, though, at the comment "it is not true to say that the mother always/nearly always gets residence"
isn't the figure something like 90+%?

catinthehat2 Sun 27-Sep-09 14:22:11

"These are lawyers that agree at the beginning to attempt to resolve matters as amicably as possible for the sake of the children and both parties (if they both instruct Resolution members) must agree to this course of action and sign an agreement setting out that if an agreement is not reached and court proceedings are issued, then both parties will have to instruct new solicitors as their existing ones will no longer represent them. This tends to focus the parties minds and deter spontanious court applications that they may sometimes be tempted to make."

? not technical ?

Feel free to stand where you wish. But have a look at your own advice and the way you come across (favourably and commonsensical, no axe to grind, not holding yourself out as a part of any profession) as a good example of a typical MN reply. Then compare to AMO.

My question is a genuine one and I hope AMO will answer in the spirit it is meant - she may well just be having a bad day for instance.

mmrred Sun 27-Sep-09 16:22:11

'spontanious'? shurely not? Do you mean spurious?

mumoverseas Sun 27-Sep-09 18:25:43

catinthehat Firstly, I'm not having a bad day, indeed I have had a very good day. I have no axe to grind but sometimes find I am unable to ignore sweeping statements about various professions.

Secondly, I fail to see what your issue is about the alleged 'technical' advice/information I had given.
I was under the impression that the OP, as many others before her, had posted on here seeking information/advice.
My advice, which I imagine is also the advice of many others, is to try to resolve things amicably. She and her H have taken the first step by trying mediation. However, that does not always work. If and when mediation breaks down, the parties invariably turn to lawyers. As mentioned by another poster, SOME lawyers do sometimes like to rush off to Court however not all lawyers are like this. If you would care to re-read my earlier post, you will note that I suggested the possibility of instructing lawyers who are members of Resolution (formerly the SFLA). All members of Resolution MUST agree to try to resolve things in an amicable manner therefore by recommending a Resolution lawyer, in my opinion, that is hopefully a more positive and potentially amicable way of matters being resolved. I fail to see how this is me attempting to influence the OP.

It is surely obvious that anyone posting on here will receive a variety of differing views and opinions and he or she is free to follow any advice they choose.

I do not intend to 'stand back'. Not that it is any of your business at all, but I do have experience in these matters. I would however refer you to the caveat at the top of the legal section which reminds posters that the numerous parties posting on this section have not been checked out. This is a clear warning and I very much doubt anyone would totally rely on any advice provided on these pages without taking independent legal advice themselves.

My 'experience' is not limited to having been an applicant or respondent in a court case or having a friend who had a friend whose second cousin once went to Court. I do have 'qualifications' in the relevant area which I have practiced in for in excess of 10 years. I have also successfully obtained Residence Orders for two of my male clients. I have a current practicing certificate and in addition, I am a qualified family mediator and have just completed a course in collaborative law. I hope that this answers your questions?

catinthehat2 Sun 27-Sep-09 19:06:36

So not actually a FQ professional ie solicitor or barrister then, though you hold yourself out to be a "family lawyer".

Should we be impressed? Well, your language and the words you liberally use are certainly legally based and you seem to have some knowledge of the subject.

But your resentment of "ignorant people (who in fact in MN terms are your equal)and your dislike of offering "free advice" (though your words are not in fact professional advice and therefore chargeable, because you have no professional relationship with the other posters) do make me wonder how you handle clients were you ever to come face to face with them

Anyway, do carry on as before.

Yes as others have said, of course the OP should see a real solicitor.

yerblurt Sun 27-Sep-09 21:10:48

I think mumoverseas is coming in for some unwarranted attack here.

I am not normally the first person to defend solicitors, especially family law solicitors, having seen and experienced some of their work first hand and also directly (as a respondent in children act proceedings who first used a solicitor, then self-represented himself, and now helps out as a McKenzie friend).

Many solicitors just see it as a cash-generating issue. Some solicitors, especially if they are on legal aid, act quite poorly for their clients.

Some solicitors are decent and do a good job.

I've met very aggressive solicitors who seem content on stirring up as much crap to prolong proceedings/generate income/waste taxpayers money.

I've met solicitors who where a total pushover and not very good at their job.

I've met solicitors/barristers who are VERY good at their job and to see advocacy at it's best is wonderful.

Most solicitors do a fairly OK job.

At the end of the day you employ a solicitor, so, just like a plumber you would instruct them on what you want bearing in mind they are their to advise you. Same with a solicitor.

However, mumoverseas advice has been spot-on.

She has not advocated any particular position but given pretty good advice IMHO. This is a bulletin board and the usual caveats apply.

The advice to use Mediation and try to achieve agreement in a mutual manner is spot-on.

To use a Resolution solicitor is also spot-on advice - as their code-of-conduct states they are supposed to act in a completely child-focused manner (whether this happens realistically is another matter).

I still don't understand this all-out attach on mumoverseas ... is there an agenda that you have catinthehat2?

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