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Someone please enlighten me about residence orders??

(18 Posts)
agingoth Sat 07-Nov-09 22:28:47

Am very confused following another thread in which I've been told that my H can get a residence order against me 'at any time'.

Please, I just want to hear legally based advice please, no comments on my parenting, I've had enough of those

We currently have 50% shared custody, it was a year long mediated agreement that I would move out of the family home for a year and we would try to reconcile. We're now divorcing and I am going back to the family home soon.

Am I right in thinking neither of us would have a clearcut case for a sole residence order now?

Also, I have heard that sole residence orders are very hard to get in general? Is this true?

EldonAve Sun 08-Nov-09 10:19:06

Bumping for you

He can apply for a RO at any time and the court may give him an Interim Residence Order in the meantime

agingoth Sun 08-Nov-09 11:01:17

What I want to know is, if he can, can I also do it? Does he have some special status due to living in the old family home?

Also have read that interim residence orders are usually only given in the case of danger to the children etc....

I've read the law now just still v confused as to how it will work in practice, it seems to be a total lottery.

NanaNina Sun 08-Nov-09 20:44:05

Agingoth - I am a little unclear as to what you mean but I will try to help. Am I right in assuming that the matter of caring for your children has been agreed between you and your H and that you have shared care of them - assume that is what you mean by 50% custody.

What is the proposal now for the care of the children. If you are moving back into the family home, is it the plan that the children will have their permanent home with you and their father will have contact with them. Sorry you probably know allthis but parents can agree whatever they like for the care of their children before or after divorce but if they can't agree, then the matter is investigated by CAFCASS and the final decision made in court.

If you and your H can agree over the care of the children, then there is no need for one or other of you to apply for a Residence Order. The only time this becomes necessary is if you cannot agree about with whom the children should have their permanent home and about contact arrangements for the absent parent.

If you cannot agree then of course you can both make application for a Residence Order and the matter will be investigated by CAFCASS who wil make a recommendation to the court and the judge will make the decision, usually granting a R.O. to one of the parents and reasonable contact (with specific details) to the other parent. These decisions are made in the best interests of the children, rather than the adults.

An interim R.O simply "holds" the position to enable the children to remain in the care of one of the parents until such time as a final decision can be made about their future.

If you could give more details I may be able to help further.

agingoth Sun 08-Nov-09 21:17:38

I think that when I left H assumed a. that I would not be back b. that I would accept his terms which are that the family must basically never leave SE London. I work a long way away, on a job I took with his blessing when we were still married, on the agreed assumption that the kids would move up with me to nearer where I work. Since the separation he has been adamant that they must now stay in London for the forseeable future(knowing, I think, that the 'status quo' assumption in the Children Act etc is on his side)

That being said he's never sought to prove that HE is the primary carer but that we are totally joint carers. In terms of time spent with the kids it's always been more me.

He will not agree to anything other than totally joint/shared residence, which I feel is impossible if he won't make any concessions at all regarding my work situation- OR me conceding residence to him.

My current plan IF I can't get another job in the SE (and I AM trying) is to take a year off and be in SAHM in order to put myself in a stronger position to get residence. I would then however be aiming to go back to work and move with the kids somewhere at least nearer to where I work to lessen my appalling 3 hour commute. I would take care to move somewhere to which he could easily commute himself as I don't want the kids to lose out on time with him.

I know that my job situation will mean nothing to the court and will be seen to have nothing to do with the children's best interests, so I realise I have to make a lot of sacrifices here. I have been told to move back in to the house because residence is determined as nights spent under the same roof and I've been told that even if I care for the kids all day but they go to another house for half the week, I still won't be seen as the parent with primary responsibility for residence order purposes. Seems insane to me if that's the way it is.

My anxiety about the order has arisen because I have made an agreement with H to return to the family home at Christmas. Posters on another now deleted thread were urging me to go back asap even though his sister is still living there, because 'he could apply for a residence order at any time'...

am I right in thinking that if he did it would be a long drawn out process and me not moving back in til Xmas would not affect it that much? I am just scared and worried tbh.

many thanks for the advice, it is really helpful. xx

floatyjosmum Sun 08-Nov-09 22:50:40

he could apply for a RO if he is in the family home and caring for them and he can give the courts a good enough reason to have a RO

they arent handed out just on a whim and 'cos i want one' isnt a good enough reason.

even if he did get a RO that wouldnt stop your contact being how it is, it would just mean their main home was with him.
you can get a shared residence order even though many people dont have them due to them doing residence and contact.

NanaNina Mon 09-Nov-09 11:54:51

Agingoth - I think I remember this now from your other thread. It's rather a confusing picture isn't it. I still can't work out the crae arrangements for the children (how old are theyby the way) - I think I recall you saying they are cared for by a nanny but I might have that wrong - sorry if I have. You say that you do more of the care than him so how does this happen. Is it your SIl who actually cares for the children.

I think one of the things with MN is that sometimes people post things with great certainty that are not necessarily accurate, and therefore you need to be cautious about some of the advice given. I think people give advice based on what happened in their case or what happened in a friend's case etc etc and this isn't really helpful as all cases are different with different outcomes.

You are quite right to say that the courts will not be taking your job into consideration and will be focussed on the best interests of the children, as I am sure you are too.

If this matter has not yet reached the court stage (and you don't indicate that it has) I would urge you and your H to try to come to some agreement between you about the care of the children, as once the matter gets to court it cna get very protracted and parents often end up feeling very aggrieved. CAFCASS (the social work dept who investigate these matters and recommend to the court) are totally overworked and under funded and are cutting corners in all sorts of ways (another long story) but I would adivse you to steer clear of them and the courts if at all possible. Am I right in thinking that the 50/50 arrangement at present is a problem because of your job. I hate to say this, but is it time to put the needs of your children before you job. I don't know how old they are, but they will grow up and there will be time for your career, but to put it before their needs now seems to me to be placing yourself in a potentially vulnerable position if this matter gets to court.

Don't worry that an application for a RO from your H can be somehow rushed through without your knowledge. However if he ever did make such an application and you contested it (which presumably you would)you would be in the hands of CAFCASS and the courts.

I think you need proper legal advice on the speficis of your case, rather than posts on MN to be honest. You could try Resolution (www.resolution.org.uk) who have collabarative lawyers who will work with both parties to come to some mutually acceptable resolution.

agingoth Mon 09-Nov-09 12:52:41

I suppose what galls about giving up my job, Nina, is that HE is not having to!!! Despite the fact that I've always put more time into the children than he has, took time off when they were little, always been there when he was off down the pub, etc. I work 4 days per week (cramming a full time job into the other 4 days, plus research) and have Mondays off with the kids.

At the moment a nanny has them 4 days per week while I work at university/home, the nights per week are shared between the family home and his flat.

The 50:50 arrangement wouldn't be a problem at all if he would just give me an inch and agree to live somewhere which is mutually convenient not just convenient for him. We always talked about moving to Barnet etc to shave time off my commute but now he is rigid that ds1 must stay in the same school in SE London until he is 11 (not something that ever bothered him at all before).

tbh I feel as if he has all the power because I made some concessions and that is why I am going back into the house and going to take a year off.

I do entirely see your point re. the courts, and tbh can see myself caving in before it comes to that, but I don't want to cop entirely out of having a career just yet. Academia is near impossible to get back into if you take time off until your kids grow up

agingoth Mon 09-Nov-09 12:54:36

btw Nina I am getting legal advice, posted the OP on a Sunday when was panicking about the 'imminent' RO I was told he could get...!

true, best to take MN with pinch of salt, but your advice has been really valuable, thanks.

mmrred Mon 09-Nov-09 21:39:35

Clearly the legal picture currently is that there is Shared Residence in all but name (or order, if you prefer). Your ex wishes to maintain the status quo, keep the children in the school/environment/routine they are used to. Regardless of the way that status quo came about, as far as the children are concerned, it is normality now, after the upset of the parental split, and they are the ones who the court is concerned with.

As far as I understand it (and I'm sure I'm hugely oversimplifying) you want to change this.

As the parent who wishes to change the agreement, you would have to justify to the court not just that it would be better for them, but that the benefits would outweigh the impact of the change.

In terms of an RO, the 'no order' principle would come into play - you have an agreement, you don't disagree that you are both equal parents, you care for the kids 50/50, so court intervention is not necessary.

What you want, legally, is to be able to move the children away from their father without his permission. TBH I would be very wary when considering a solicitors advice as I can't see how posing as a SAHM for a year would change the status quo so radically. You would still be joint parents and I don't imagine he will simply move out and allow himself to become a weekend visitor.

agingoth Tue 10-Nov-09 17:33:20

I wouldn't be 'posing', mmred, I'd be doing it, wouldn't I.

pretty hard to stay at home without a job without actually doing the work of full time childcare.

It might not work out for me anyway and I'm aware of that, in which case I'll just stay as I am, looking after the kids, for the forseeable, as I am very unlikely to find work in London.

I just don't get how one person gets to dictate everything. We were in mediation today and H flat refuses to give an inch, even when I said I would be happy to do 2 more years in London if he would then consider a different arrangement (not if the kids etc protested and wanted to stay, then of course they would stay where they were.)

He has managed to totally identify the children's 'best interests' with his own. I feel so hopeless and just want to cry (don't worry, the kids are here so I won't).

The mediator did say she had almost never seen such a disparity of situations between a couple, in which one seems to have kept everything and the other (me) given up the lot. She even described my situation as 'cast adrift'. This did not matter a sod to H who sat smugly on his fat arse through the whole thing.

It looks as if my career may well be over. I am so so so sad but I love my children more than that so they have to come first. How vile that H gets to have it all, literally.

agingoth Tue 10-Nov-09 17:41:41

If I do get forced out of a job I hope to god I can get some sort of financial compensation from H for that. Wonder if they take into account lost earnings etc as well as pension requirements and what you actually need to look after the kids.

mmrred Tue 10-Nov-09 20:26:27

I used the word 'posing' because I thought I had understood from the other thread that your plan was to take a year's sabbatical and move back into the FH so that you could then apply for Sole Residence and move the children regardless of your husband's wishes, and then go back to work.

I was giving my opinion as to the likely legal success of that strategy, which is what I thought you were asking for.

Maybe you should try a mental reassessment of the situation? Thinking in terms of 'winners and losers' or 'all or nothing' can't be good for your mental health. After all, you both have places to live, you both have your jobs, and you both have the children 50% of the time. I understand you don't like the choices you have to make, but if your X wanted to move for his 'dream job', he'd have the same dilemma. If the courts do eventually give you permission to move the children, and he decides he can't be away from them and gives up his job to follow you, will you be financially compensating him?

agingoth Tue 10-Nov-09 22:10:25

mmred, he's a barrister and I work in higher education. Do you really think I have a chance of 'compensating' him if he has to move jobs? Even in Leeds or Manchester he would earn 5-10 times what I do.

agingoth Tue 10-Nov-09 22:14:24

Also, there is no way in hell he'd EVER give up his job actually. He wants to be in the House of Lords. This is partly why he's clinging so desperately to his London life: he has it all atm, kids when he wants them (but not all the time), 25 minute commute etc.

I am just questioning why that should really remain the case for the next 10 years if it means that I have to work 3 hours away.

And btw, I didn't suddenly get my dream job then decide everyone had to move. I got the job while we were still married and ds2 was only 4 months old. The marriage deteriorated from that point onwards. We had bought a house near my work and I was going to move into it with the kids and he was going to come up 3 days a week. This fell through. A couple of months after that point we actually separated and he decided the children must never leave London. I was advised at that point by a lot of people 'just take the children up there with you' but I decided not to as that was not fair on them or H.

CarGirl Tue 10-Nov-09 22:24:54

Your situation is just so difficult isn't it I really feel for you.

What I don't understand is why he is so desperate to have 50% care when the reality is he spends so little time with them - defies my logic. It always seems to me that he is the one who wants to win and see you lose!

Perhaps you need to just try and take things 3 months at a time.

In 12 months you may feel different about moving the dc against his wishes out of London and the school of his choice etc as at that time you will have been there primary carer for 6 months???

Can you decide to take the sabbatical and then look at moving them away if nothing in the SE has come up etc?

If in the future you need to move house to another part of London you can say to your then Ex either he provides the chauffer/taxi service so your ds can stay at that school or ds changes school etc. Please don't assume that things can't/won't change over time.

I would aim to get your divorce settlement on the assumption that you won't be able to get a job because of the restrictions he's placing on you, I would be asking for spousal maintenance too etc.

I'm sorry that is such cold comfort for the situation you are in. I really hate what your h is doing to you and your dc I guess the only person he cares about is himself.

agingoth Wed 11-Nov-09 08:45:36

I'm DEFINITELY asking for spousal maintenance cargirl grin

Solicitor says the massive disparity between our incomes would suggest that will be the case anyway. Particularly if I get forced out of work as can't find a job in SE.

and yes I do think it's not really me thinking in terms of winning or losing, the mediator even said that I had clearly 'lost out' on everything.

I think the 50% thing is just a desperation to have them under his roof, tbh- to maintain control and the illusion that nothing in his world has changed. He even lied to the mediator about when he gets home- he said 'between 6 and 6 30', I then asked our nanny for confirmation of this and she said it's always pretty much 7pm. Sounds petty, but makes me realise he is prepared to lie to keep the status quo.

I feel better today. The fact that he is so rattled about me moving back in and taking a sabbatical suggests to me it's the right thing to do long term, etc.

btw for mmred etc, I would not consider taking them anywhere that H could not quite easily commute to (within an hour)- this is not a courtesy he has extended to me.

Also, ds1 would probably be 8 or so by the time I considered moving and imho old enough to have input into the decision. If he wants to stay put, then that's it for me, I stay where he wants to stay.

NanaNina Wed 11-Nov-09 11:56:47

Aginoth - given your H is a barrister can I just reiterate my advice about trying to keep this matter out of court, as he is highly likely to be able to "work" any court process to his advantage.

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