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residence-seeking husband. what are my rights

(5 Posts)
servalanempressoftheuniverse Thu 09-Oct-08 15:26:17

It's a long story but my ex-H who I'm unfortunately still living with is claiming residence of my kids due to my 'emotional instability'. I work in the North Midlands and he is insisting on residence where we currently live (i.e. South East London), thus making it basically impossible to do my job.

He is seeking to give me 'generous access' e.g. Mondays, Tuesdays and alternate weekends (!!) and in SE London only, of course.

re. the emotional instability, I certainly do have depression, am mildly bipolar and have threatened suicide a few times at the end of the marriage and before but have always been able to look after the kids. I guess that (the suicidal threats) is the thing that is going to shaft me.

I am trying hard to build a new life for myself near my work, there is a great community there, really cheap housing, great schools, etc. And I have flexible working hours so I could be with my kids a lot more than I currently am (and far more than he ever could).

I have also cut my nanny down to 3 days a week (she was very unhappy indeed!) so think I have an even better claim now on being the primary carer.

My question is mainly this, I know I may have shafted myself re. residence by talking suicide (and there is evidence of this unfortunately) but
a) doesn't the court focus on the way things are going forward, so if I am obviously better in a few months/year (I already feel a lot better out of the marriage), will that swing things
b) given that this case is going to be going on for ages, am I within my rights to take the kids up to the university with me in the next academic year? I am the primary carer after all and have suitable accommodation, daycare and school places for them. Would my xh be able to get some sort of injunction out against that? Would his disagreement be noted by a court?
many thanks all. This is a very, very bad time but I'm still here and at good moments feel better than for a while.

mumoverseas Thu 09-Oct-08 16:11:13

Unless there is a dispute regarding where the children will reside (ie with which parent) the courts no longer get involved due to the 'no order principle'. If however there is a dispute, then one party (the one seeking the Residence Order will ultimately have to make an application to the Court. At that first directions appointment both parties will have a meeting with the CAFCASS officer (formerly called the court welfare officer) a Court appointed official whose job it is to try to resolve matters satisfactorily. If it is not possible to reach an agreement (interim or not) at that meeting, then both parties will go before the the District Judge who will then give directions. The CAFCASS will then be ordered to prepare a report on the matter which will involve meeting with both parents separately and also if appropriate seeing them with the children. Depending upon the ages of the children, they may also be seen and 'interviewed' although very informally initially. The CAFCASS report is usually ordered to be filed within 12 to 16 weeks although this really depends on which area you are in. Both parties will then usually file and serve statements (send to court and to the other party/their solicitor) There will then be a further hearing when things are considered and could in fact be several hearings before things are decided. Yes, your previous problems will come into it, but bearing in mind if matters are contested, a final hearing could be up to a year away, you have time to sort yourself out if you see what I mean. when considering the matter of residence, the court paramount concern is the welfare of the children therefore will take everything into account, past, present and future plans.
Technically, you could take the children with you to university as you are not removing them from the jurisdication (ie England and Wales). Your xh could however make a further application under the Children Act, either a prohibited steps order (to stop you doing something) or alternatively a specific issue order (an application which considers a specific point) although this would normally be dealt with under the main Residence Application. Hope this helps

servalanempressoftheuniverse Thu 09-Oct-08 16:29:03

Thanks so much mumoverseas.

I am already feeling so much more sorted out than I was in the marriage, it was the main problem for me, plus I now have a career and workplace that I love, so I am confident that in a year's time things are going to look very different.

I am thinking of renting a house on the university campus anyway, because even if I don't get residence I will want them to have somewhere to stay with me at weekends and in holidays. etc.

I just can't see a court deciding that it's in the kids interests to only see me Mon/Tues and alternate weekends, in the horrible outcome that I don't get residence, I would want a lot more than that and hope that as the mother of two very young children, I would at least get that...I have problems but they have never been in any danger with me, I have always loved and cared for them.

If the hearing is still going on I would ideally like to take the kids up with me for the start of the new academic year, it is a great place for kids and I know so many other families there, etc. But I am scared of my husband either violently trying to stop me or getting some sort of order- though if the kids were obviously happy and fitting in, I presume that would not happen?
x thanks so much.

mumoverseas Fri 10-Oct-08 05:26:30

If your husband were to become violent then you would need to consider obtaining a non-molestation order (a type of injunction) which would prevent him from harassing you etc. (to be honest, if this happend, although it would be horrible for you and the children, it may strenghten your case for residence)
Can't see how his proposal that you have them Mond/Tues and alternate weekends is sensible as if you are a long way from where he is (assuming he had the kids and they were settled in school where he lived), how would that work with school? He has not thought this through. what about his work, how would he deal with all the day to day childcare.
As I said before, the main thing that the Judge would consider is the welfare of the children and depending on their ages (how old are they - and are they boys/girls?) they may be asked thier opinion. I do however hope you can resolve this without having to go to Court. Good luck

servalanempressoftheuniverse Fri 10-Oct-08 13:45:55

he is very unlikely to get violent, not the type (more cold slow burning rage!!)

I completely agree that his proposal is not sensible. I would have to be in London waiting around for school to finish.

His way of dealing with the kids is to employ nannies sad. Not that I am not using one right now, but I am in the house all day and at the beginning and end of the day, I also have them all day Monday and have told the nanny I will now be doing Fridays too. They seem even more precious to me now, if I am going to lose them, I want to spend all the time I can with them. I have considered leaving my job for them but that seems too defeatist atm.

I have proposed that if I had the kids on campus, we could rent a house big enough for him to have a room to stay in whenever he wants. His idea is to buy me a house in London (where I don't work or want to work) so that I can fit in entirely with his plans. I do hope that will look as unreasonable to a judge etc as it does to me. I have few hopes of this not going to court unless someone tells him straight he is being unreasonable. I don't think a mediator will do that tbh.

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