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can one parent really just do this? custody question - pls help

(18 Posts)
morocco Mon 06-Oct-08 21:04:58

i'm hoping for some advice I can pass on to a friend of mine. he's getting legal advice but can't afford much and I'm worried there's things he should be doing asap

after splitting up over a year ago, he and his ex partner agreed he would look after his ds, so he moved to a suitable house, gave up work for a while then found a part time job with hours to fit round school, enrolled his ds in a new school etc. ds did really well

now ex has turned up for usual weekend visit and is refusing to return ds, says she is now keeping him, has applied for all the benefits in her name, is going to change his school etc etc

friend is gutted. he says he's been told there's no point phoning police etc as he never had official 'custody' - it was all informally agreed. he had all the child tax etc in his name though. now ex won't even let him see his ds.

any advice I can pass on to him? feel so sorry for him. he's gutted

CarGirl Mon 06-Oct-08 21:08:35

There is no such thing as custody anymore, there is residency and contact. My understanding by the fact he provided residency for a year then he has it until contested which it now has been.

Yes I would contact the police and get straight to a family solicitor. I would contact the benefits people and tell them of the situation and state clearly that his ds has not been returned from a contact visit and that he will not agree to signing over child benenfit and CTC as the matter is being urgently dealt with by solicitors. Same with the school.

I would also go and find The Families Need FAthers website they will have excellent up to date legal advice on what to do next.

solidgoldskullonastick Mon 06-Oct-08 21:10:55

He needs to consult a family law solicitor straight away. Is his name on the birth cert? Were they married? Either of those things would help him, but even if neither is true, he has been the main parent of DS for over a year and there will be evidence of that (benefits in his name, school etc).
His ex cannot do this unilaterally as it will not be seen as in the best interests of the child - a school age child is old enough to want to see his father.

Mind you, I do wonder what the background is, exactly. What is the XW's motivation?

morocco Mon 06-Oct-08 21:19:31

thanks for the quick replies
i wondered the same about the benefits
i don't want to go into too much detail about the whole motivations side of thing, hope you don't mind, but I sadly don't believe this is being done in the interests of the child. am very sad about it.

lostdad Mon 06-Oct-08 21:20:40

Morocco - get his to join Families Need Fathers (FNF)...do it as soon as possible. Google the name, call them and get him to join.

They can give him a lot of support, point him in the right direct concerning potential legal action (which they will do their damnedest to try to help him avoid) and what he can do in his son's best interests.

If he has no option but to go to court, he will be able to find people there who can point him in the right direction concerning representing himself in court, with the help of a `Mackenzie Friend'.

Accuse me of going on about it, but join FNF - the day I joined was the day I realised that I would see my son again. Before that...I almost gave up.

lostdad Mon 06-Oct-08 21:21:15

The helpline is open until 10pm tonight, so if you find them quickly, he can be speaking to someone before the night is out.

CarGirl Mon 06-Oct-08 21:21:34

The Ex is clearly not acting in the child's best interests which will actually go in his favour. If he is on a low income he may qualify for legal aid.

morocco Mon 06-Oct-08 21:38:20

thank you again, I've taken the phone number round and told him not to lose hope

lostdad Mon 06-Oct-08 21:50:50

Avoid solicitors where ever possible Morocco - get you friend to try to talk to her, try mediation. Court is a last resort and not a very good one.

morocco Mon 06-Oct-08 22:09:21

what makes you say that, lostdad? are they much more likely to rule in her favour? what kind of mediation would he try? is there an official body that does that?

lostdad Mon 06-Oct-08 22:46:54

For mediation, google National Family Mediation. They're a professional body who conduct mediation.

Avoid court because it's the surest way of escalating acrimony and you're effectively handing over any decisions concerning your child to strangers - and solicitors who have a vested interest in court hearings running and running.

My personal recommendation is that your friend joins FNF, gets advice from people there to try to resolve things without a court hearing. Problem is though...`status quo'. The longer a parent hangs onto a child, the stronger there argument is for keeping things the way they are.

I'd imagine your friend is in the `startled rabbit in the headlights' stage - paralysed and not doing anything because he's so shocked and doesn't know what to do. He'll probably say `I'll think about it'...and do nothing. Sign up for him Morocco. Take a mobile round to his place, dial the number and hand him the phone. The longer he leaves it, the worse things get. He needs to get things moving - which as I say is hopefully not in the direction of court, but should be as a last resort.

gillybean2 Tue 07-Oct-08 08:17:25

I don't think you need to be a member of Fnf to get advice from their telephone help service, though it is well worth joining up if you need their help for more than a few minutes, which I'm sure you will!

Your brother was presumably getting all the benefits (most important one is child benefit) up to this point. His ex will have to show she's had the child for several weeks before she is entitled to get them swapped over and he can contest this until then.

Situation is basically that ds resides with your brotehr currently and ex has not returned child after contact. My advice would be to speak to the school and the police. Explain the situation to school so they are fully aware and can support ds through this time. Explain th situation to police and ask for their help in collecting child from school as ex is likely to make a fuss etc. The police can be more tricky, but you need to get onto the domestic violence people as emotional violence is being caused and you need to insiste they treat your brother equally as they would with any woman in such a situation. If you get a good officer you will be fine, if you get a useless one you will have to push for your rights to be held up.

Then get the papers into court. If you have to use a sol for speed then do it as the longer this drags on the harder it is to fix (though I would agree with lostdad that sols drag things out and aren't always looking out for the best interest of the child). However you should get excellent advice from Fnf and so may be able to avoid using a lawyer. Then find a McKenzie Friend who will be able to help you with the paperwork and attend court with your brother.

If your brother is too shocked, stunned and confused to get this ball rolling, or kidding himself that she'll change her mind in a couple of weeks so lets leave it alone then you need to snap him out of it and get this ball moving on his behalf. The speed at which his ex has applied for the transfer of benefits means she has been planning this for a while and it is likely benefit related rather than in the best interests of the child.

Phone Fnf if you haven't already.

gillybean2 Tue 07-Oct-08 08:18:46

Sorry had thought it was your brother you were asking about, but see now it is a friend. So substitue friend for the word brothr in my above message!

morocco Tue 07-Oct-08 17:39:09

gillybean, you are a mind reader you know!!

and also lost dad, startled rabbit syndrome definitely describes the situation

I will go round again tonight to make sure he's phoned them up

lostdad Tue 07-Oct-08 19:00:40

Like I say...if you have to, phone them up while he is in the room and then hand him the phone and order him to talk to them.

People doing what his ex is rely on the shock their actions have caused and as Gilly says...it's very probably been all planned.

I bet your friend is saying it is a spur of the moment thing his ex has done.

It isn't. When he starts talking to people in FNF he will find lots of people with identical stories who will tell him what has happened, what is being said and what will happen...without him having to give them any background information.

Sad but true. Longer he leaves it, the worse things will get.

ElenorRigby Tue 07-Oct-08 19:25:17

Morroco...
your brother is the primary carer for his DS and has been for a year.
What his ex has done the courts will take a VERY dim view of.
He needs first to go pick up his DS from school but beforehand he needs to inform the police there may be a breach of the peace- the ex will no doubt create. The police need to know she has taken DS from dad the primary carer, without consent.
Almost at the same time he needs to put in a C1 form for residence to the local family court. He can do this himself without a solicitor.
An aside about family law sols...
They are for the most part, incompetent, self serving, money grabbing leeches who give not a shit about children.
Your brother would be better served by (as others have said) getting advice from Families Need Fathers, going Litigant in Person ie Representing Himself but with the aid of a McKenzie Friend (lay legal advisor)

He needs to shake himself out of his shock and f*ing get moving.
In family law status quo is everything, if the ex manages to keep hold of your bros DS for some time, she could argue she had become the primary carer, regardless of the shitty tactics she did to achieve her goal.

In short your bro needs to get moving and not delay things by getting involved with blood sucking shits solicitors

yerblurt Wed 08-Oct-08 00:37:35

You've had very good advice from ElnorRigby, lostdad and especially gillybean.

Couple of things need clarifying though for us;

- does your brother have Parental Responsiblity - was he married to his ex-partner, is he named as father on the child's birth certificate and when was the child born. (marriage confers PR automatically onto dad and if the child was born after dec 1 2003 then dad automatically has PR).

- does your brother have the Child Benefit in his name?

... as others have said, as there is no residence order in place, then one parent does not have the power to unilaterally dictate the parenting arrangements for the child.

The situation seems to be thus;
- your brother and his ex have previously come to a mutually agreed situation whereby dad would be the primary carer. Mother did her own thing (for whatever reasons) for a year.

- mum has now re-appeared and has unilaterally attempted to change a long-standing parenting arrangement that has been in place for a year. Presumably she consented to it otherwise it would not have been agreed in the first place.

- mum has not been acting in the child's best interests, because she has informed dad that she intends to keep the children and apply for state benefits, with no consultation or agreement.

- this is wholly unacceptable and likely to cause immense confusion and upset to the child, as he/she has been used to the parenting arrangements for a year.

... your brother needs to shake himself out of the shock, which is normal to experience.

Mum has no more right than dad to dictate what happens - any parenting arrangement should be made by full consulation and agreement.

Your brother needs to;
- go to the police and speak urgently to the Family Liasion Officer. He should calmly explain the situation, that a status quo of parenting has been in place for a year and the ex has tried to change it.

He should inform the police that he intends to collect the children from school as per the normal parenting routine and he would appreciate the police being on standby should there be a breach of the peace, which he anticipates as the ex has tried to take control of the children. He should point out that he is NOT preventing the children seeing mum, just that she has unilaterally tried to change this long-standing agreement without consultaiton or agreement. You anticipate it either going to family mediation or eventually the family court system and you request their help in this matter. Be very aware that the police will likely be sexist and presume that mum knows best - this is gender stereotyping of the worst kind and he should ask if the police would treat the situation the same if it was a woman making the same request?

- your brother should immediately make an appointment to see the school head and inform her of the situation, explaining that he intends to collect the children and he would appreciate the school informing him of any attempt by mum to collect the children. He should also say he has taken advice from the police.

- don't take any guff about "needing to see a solicitor" - that could take weeks, you don't NEED to use a solicitor for anything, including court (you can self-represent, like I did as I couldn't afford solicitors!). He needs to act NOW. He can always seek advice from a family law solicitor later ... time is of the essence and he needs to act quickly to prevent a new status quo being set in place. Because if he DOESN'T do anything then mum could turn around and say 'well he didn't do anything to change the situation so he obviously must have agreed and consented to this'.

- Inform the child benefit/CTC people that mum is trying ot make a fraudulent claim.

- phone the FNF helpline and get some advice, pop along to your local FNF meeting too (I'm the chair of a local FNF group).

- If it does look like it's going to go court wise then brother should consider whether he is going to apply for a sole residence or a shared residence order. The courts and the whole family law gravyboat don't really like dads making sole res applications due to their inbuilt gender stereotypes and sexist attitudes, so it's probably better to make a shared res application, but keeping the parenting/contact time to what it was before.

- your brother should also look into proposing family mediation to his ex, so they can hopefully come to an agreement without the adversarial court system. It's worth a try at least

good luck with everything.

ElenorRigby Wed 08-Oct-08 20:47:01

morocco...
how is it going?

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