Famuly court, residency hearing - any tips?(12 Posts)
My boyfriend has today been given a date in February for a residency hearing regarding his son from a previous relationship. He and his ex have shared the upbringing of his son since they split with no legal intervention but now she has decided to apply to court for something formal to be in place. Her application states she is applying for "shared" residency but does not state what percentage time she is applying for, so we have no idea if she is planning on trying to get their son for the majority of the time and massively reduce the time my boyfriend spends with him.
We are not entitled to legal aid and cannot really afford a solicitor. He is planning on getting advice from a solicitor and then representing himself in court. But neither of us have any idea what he should and shouldn't be doing/saying or asking for? Can we find out her intentions with regards to how much time she is applying for before he goes to court so he has time to prepare or is it all kept quiet until the court hearing?
Secondly, as he will have no solicitor with him am I allowed to attend court for moral and practical support? I wouldn't say anything of course, just be sat with him, maybe take notes and prompt him from his notes if he forgets anything - he is dyslexic so finds reading from notes in stressful situations very difficult, he just cannot read quickly and digest information to then relay to someone else, and he is petrified that without someone there to prompt or remind him he will not be able to use his notes effectively to cover all his points and therefore may do himself a disservice in some way.
Title should read "family" of course, silly me!
What is the issue they are disagreeing over?
If they have an arrangement that works, then the court won't issue an order just because - I assume as this is final hearing that they've been to mediation to resolve the issue, and it didn't work?
You'd be best asking on Legal but I don't think you'll be allowed in court - I think there's an organisation of volunteers called McKenzie friends who are permitted in court to provide the sort of support your DP is asking for.
If he self represents and his ex doesn't, her solicitor ends up being a go between with him in the main reception with you and his ex and solicitor in a side room discussing things backwards and forwards before actually going into court room where you won't be allowed.
I would advise getting a Mckenzie friend as in our case, dp ex self represented and because she presented something in the wrong way at the wrong time, the judge dismissed it. Had she had a Mckenzie friend, I would think she would have been advised to do things differently.
Thank you theredhen A friend of ours had exactly the same thing, she and her ex made agreements in the "backwards forwards" bit before the court room, the solicitor wrote it up and they both signed, then they went into the court room and the judge just read it out, they both agreed and it was printed onto the front of a court order (but not actually an order if that makes sense). Then her ex decided he had changed his mind 3 weeks later and wouldn't keep to the agreements. She applied to court but was told those agreement have no weight at all - do you know if this is true?
She will have a barrister, she has already informed us of this and that mummy and daddy are happy to pay for as much as she needs. We just can't afford it and have not a single rich relative between us I will get him to look up Mckenzie Friend, so am I right in thinking someone representing themselves cannot take a friend (of the normal sense) into a courtroom for moral support?
There is an arrangement that works notadisneymum but there have been a few hiccups and she likes to blame them on my boyfriend or sometimes on me.
I have heard (from researching online) that the court can say "no order" and often this is done when there is a working agreement and there is no need for an order. I wonder what level of problems there needs to be for them to think there should be an order. My boyfriend would much rather it be kept out of court if possible. It's a bit long winded but here goes;
The "rota" is worked out so there is a "swap" (for want of a better word) of DSS every 3-4 days and as it's a rolling rota there is never any need to update or re do it as it stays the same. Over the past 6 months there have been a few of these hiccups, resulting in DSS not being "swapped" form our house to hers 3 times.
The first time she sent a childminder to collect him from the agreed "swap" place. My boyfriend had never seen this childminder nor knew about her or that she was coming so he refused to and his son over. He did go back later that day and handed him over to his ex of course.
The second time was when I took DSS to the agreed location and she was running late, but didn't inform either myself or my boyfriend. I waited as long as I could (about 20-25mins) but didn't hear from her so I had to take him back home with me, again my boyfriend took him back later that day to hand him over.
The third time was when my boyfriend took him to the swap location and her dad came to collect him. He had been told about a disagreement between my boyfriend and his ex which had resulted in them both shouting at each other and her dad started having a real go at my boyfriend, shouting and swearing and really losing his rag. My boyfriend hand his son over to him as he was being very aggressive and swearing. He took him home and handed him over the next day.
She has claimed on the court residency application that my boyfriend (and me) have deliberately tried to keep DSS and not hand him over, which is just silly really as whenever there is a problem he always rectifies it and rearranges the swap as soon as possible.
The other thing on the application is that she wants to make the current agreed location (public place) the permanent swap location. The problem is, this is where they used to live together before they separated and nobody lives there now. She now lives with her new partner elsewhere and my boyfriend now lives with me. The location of the swap point is 2 miles from her new house and 5 miles from ours. However, I do not drive and the swap point is in an area with really rubbish public transport. Now I know that's not her problem but it means if my boyfriend is working and public transport stops for snow etc I can't get there to drop DSS off or collect him, plus even on a good day its a pain in the butt to get to.
He had asked to change the location to another place, which is 3miles from our house (closer) and 2 miles from hers, so no further for her at all. This new location has parking and is served by a mainline station so easier for us all and in fact it is nearer her workplace for when she comes and collects DSS directly from work. In short it is far easier for us and no difference to her. She has refused on the grounds that I should learn to drive! Not sure how unreasonable we are being of if a court work things like swap locations into residency orders though?
I will pop a thread on the legal section too, regarding my attendance in court thanks for the tip!
Oh and forgot to say. Mediation never actually happened. My boyfriend went to the initial meeting (the one you go alone to) but we are unsure if she did too. There is a box about mediation on the application form and she has put there that it is not suitable given that my boyfriend refuses to discuss day to day issues about DSS on the telephone with her or her family (as it has always led to arguments) and he has requested for now that all non urgent things are discussed via email. She has used this as a way to avoid mediation (for some reason, he was more than happy to go) implying that him refusing to have constant phone calls from her means he will refuse to talk to her in mediation. I wonder if the court will refuse to hear the residency case then until they've had mediation?
I think the first issue is that both parents need to understand that this is between THEM, and you have no role to play.
So, it's not the fact that you can't drive that is an issue, it is the fact that your DP cannot pick his son up himself. A court does, quite rightly, consider the ability of EACH PARENT to meet the terms of any order they put in place (not always, but usually). In your DP's case, it sounds like he cannot fulfil the responsibilities of the arrangement that is currently in place for his DS without relying on you - the court will want to know what he intends to do if you are no longer willing/able to have that responsibility delegated to you?
Use of a formal childcare provider (CM etc) is often considered preferable by CAFCASS/the court to relying on friends - but obviously, you DP cannot be expected to hand his DS over to a complete stranger; some prior notice should be given if this is the case. As for the incident you mention with your DPs ex's Dad, unless your DP reported it to the police or similar, then it really won't carry any weight in court. Saying that, I don't think the court will be that bothered by the two incidents you mention - it's not as if your DP withheld contact for a prolonged period and a few hours here or there isn't considered significant.
It sounds like both your DP and his ex would benefit from the Separated Parenting Course run by CAFCASS, as there is obviously a great deal of animosity and that needs to be sorted - courts are often ordering parents to attend this now rather than issuing a Contact/Residency Order straight away, and it is an excellent course.
I'd like to think that a court would order mediation in this situation (assuming his ex refused to attend) - they are supposed to, but I think the services are pretty swamped at the moment.
Sorry for delay. Thanks for such a in depth response!
Neither of them can personally be there to do all the dropping off/collecting or caring for their son as they both work. She has her sister do it a lot, or a friend usually and it's either me or his mum. They share care of him but I'd say on average we may have him slightly more than she does but it's pretty even over a month usually. I say he's my "boyfriend" which sounds a little wishy-washy I guess, he's my "partner" really, we've been together over two years, have a home together etc and his son is my step son (DSS).
We had hoped as you say that the court will not take a dim view of the failed "swaps" and he has been told before to always think what would a court see as "reasonable" whenever there are problems to be solved, so he always tries to be as reasonable as he can and has always quickly rearranged any swaps gone wrong even when not his fault. Yes, he did report her dad swearing at him to police, and they logged it although couldn't take any action as no "proof" I guess, but it's logged and he made a statement.
What is the separated parents course, he works full time so do you know if they do one at the weekends perhaps?
beary I think your DP might need to investigate his rights to request flexible working as a parent if he wants to play an equal role in his DS life - and his Mum too by the sounds of things; exactly how many carers does this little boy have?
You've mentioned Aunties, friends, grandparents, Dad, Mum, yourself, step-dad, a childminder - and he has witnessed conflict/aggression between his parents. That isn't good for a young child - both parents need to sit down and work out a routine that puts their DS first, even if that impacts on their career choices.
If a court orders mediation or attendance on a course and your DP says "I'm sorry your honor, I didn't follow the order because I went to work" then the court will, quite rightly, consider that lack of flexibility when deciding residency & contact.
Sorry for not replying sooner. I had a word with him and he has already done two of the courses like you recommended, I was thinking a full weeks course or something but he says he did a short one online and he went to a 4 hr one on a Saturday which he says was a SPI run by CAFCASS, we just thought of it as a day workshop rather than a course, hence the confusion.
The court will not take a dim view of the 'hiccups', particularly if the circumstances are explained. You are relevant in this to an extent, particularly if you and dp are considering marriage and/or more children. You might want to consider a residence order, if you have dss more than the ex. It means your dp can make day to day decisions regarding dss independently and can take him abroad on holiday without ex's permission (although of course holidays would need to be discussed).
Just to apologise, I tried to be a little bit "vague" with personal details on this thread so as not to be recognized in case her or her family are reading but just realized that I started a new thread (I'd forgotten about this one) and on the new one I failed to do the same "vagueness" (DOH). So to clarify, (as I've now said it anyway) I actually have 2 DSC one little boy and one little girl and if she read this it's not so bad I guess. We've had updates now though so pelase look at my new thread with regards to DP's EX actually now wanting a greater residency share.
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