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Step father gaining custody of my daughter

(44 Posts)
catarratto Thu 09-Jul-15 20:58:58

my ex partner has not seen our daughter for 3 years. He gained access although I had 2 injunctions against him and he harassed me for 2 years solid. When my daughter had contact he was verbally aggressive and the police were called on occasion. He stopped appearing for access (thank god) but has suddenly phoned my daughters school saying he is going to pick her up. Unfortunately he has parental responsibility and because of this I am worried that if I die my daughter will go straight to him. He is totally unfit to care for her and she has stated she does not wish to see him because of his behavior when she has been with him. She lives with me, her brother and step dad who she is very close to and sees a lot of her grandparents. I thought about her step dad gaining PR but her bio father would never agree to this. Also, my husband said he would fight it in court but without legal aid then how could he afford it? I'm out of my mind with worry. We have been married for 3 years and together for 5. Would the courts take my daughters (Age 8), sons and husbands view into account? But again, what about legal fees? After going through the court system regarding access, I have little faith in their decision making seeing as they made me allow contact between my daughter and a horrible unsafe 'man'.

MsColouring Thu 09-Jul-15 22:21:33

Didn't want to read and run. Have no answers but think it may be difficult if your dd's dad is still on the scene. Post in legal?

HerrenaHarridan Thu 09-Jul-15 22:30:53

If you and dp get married he will get pr.

Courts generally do not want to destabilise the status quo if kids are happy and there are no concerns so in event of your death dc could stay in the family unit with step dad and step siblings.
Should ex take things to court he may or may not get access but they're unlikely to rip a settled kid out of a happy home

catarratto Thu 09-Jul-15 22:36:24

Didn't see a legal section . Can I copy and paste this thread to it?

MsColouring Thu 09-Jul-15 22:42:31

Yes. Think so.

PeruvianFoodLover Thu 09-Jul-15 23:06:31

herrena that's not the case in the UK.

Both my ex and I have remarried, but neither of my DDs stepparents have PR.

yellowdaisies Thu 09-Jul-15 23:14:09

Your DH can apply to have PR for your DD. That wouldn't take it away from her dad - the three of you would all have it. I think it's fairly straightforward if your ex would agree to that but still possible even if he doesn't. Possibly costs a bit, I'm not sure. Removing it from your ex would be a separate process.

You can also state in your will that you want her to remain with her step dad, which wouldn't remove your ex's PR, but adds to the weight of factors that would be considered.

CandyLane Thu 09-Jul-15 23:52:58

I'm watching with interest as I'm in a similar situation.
DS sees his bio dad but he doesn't play a parental role in his life, he isn't fit to raise a child.
DH has been in his life since he was a baby and even though DS knows he isn't his real dad, in his eyes he is his dad.
We have a nice home, he's in a great school with lovely friends, he has a little sister who he adores.
I worry if I got hit by a bus tomorrow that DS could be sent to live with his dad because his birth certificate says he has parental responsibility.
I can't imagine my ex ever agreeing to DH having PR, he's like a child himself, he'd probably just have a tantrum about it!

catarratto Thu 09-Jul-15 23:59:42

That's exactly what I'd expect my ex to do Candylane but I may look into it anyway. We are married and my husband treats all my children as his own and visa versa. My daughter is very bonded to him. Surely a court would take this into account.

CandyLane Fri 10-Jul-15 00:05:44

I've just found this info ...

It says on there that if your DH has lived with your DD for the past 3 years then you can still apply to the courts, even without your ex's consent, although it will be more difficult.

sliceofsoup Fri 10-Jul-15 00:27:17

Watching with interest as we are in a similar position. However my ex has regular access to DD1 and is a good presence in her life. I know that if something happened to me he would fully expect her to live with him, but I worry about the affect that would have on DD1 and DD2 as they would then be split up. DH treats DD1 as his own, without stepping on my ex's toes, and he would prefer to keep her with him and keep the access to my ex as it is. Mainly so that both DDs would be able to continue to grow up together.

Applying for PR would probably be opposed by my ex though.

catarratto Fri 10-Jul-15 00:32:49

Thanks Candylane. I read this earlier. I spoke to a solicitor earlier who didn't mention it and just said to make a will but I think I'll ask having read this information. I have often had conflicting advice from solicitors; it can be very confusing.

catarratto Fri 10-Jul-15 00:36:49

I suppose if it's opposed it doesn't mean the step parent won't get it. Surely if they are living in a family it would count for something with regards to the child's welfare and stability although after having experienced 4 years of court hearings I have little faith in the system.

swingofthings Fri 10-Jul-15 17:06:01

I believe the status quo is that residency would be given to the biological dad unless there is evidence of abuse/neglect etc... The fact that they are crap parent doesn't really get into the legal arena. I think a step-dad could have a chance to get residency if they could challenge that the child is desperate to live with them and there was medical recommendation that this would be for the best of the child's mental health. PR or not, it really wouldn't be straight forward unfortunately.

What I would highly recommend though is that you get a will to set up that any money that would go to your child is set up in a trust with someone named as executor. Otherwise, the biological father could apply to be guardian of the child's account and whatever they want with it.

catarratto Fri 10-Jul-15 18:28:51

Thanks swingofthings. Would the court take into account the fact that my child is settled with her step dad and brother? Also, would they take into account my childs wishes? She has stated she doesn't want to see her father as she stated he has smacked her and the police have been called when she has been on visits in the past due to violent arguments with his girlfriend. I can't bare the thought of it. She couldn't cope with him. Apart from his behaviour, she knows nobody where he lives and his lifestyle is completely different to ours. He has barely coped on past visits.

AcrossthePond55 Fri 10-Jul-15 18:53:33

I have a friend who had similar. She drafted a will explaining that she wanted her son to live with his stepfather. She also took out a relatively inexpensive insurance policy with her DH as beneficiary expressly stating in her will that the proceeds from the policy in the event of her death were to be used solely to fund any legal 'battle'. This was separate from other life insurance.

Luckily, it was never needed.

CandyLane Fri 10-Jul-15 19:04:06

So, say if I died, what would actually happen?
Tbh I don't think DS's dad would actually want him full time, he can hardly be bothered to see him for a few hours a week.
He would probably tell people that he wants custody of him but if it actually came down to the nitty gritty, I don't think he's got it in him to see solicitors and go through the courts.
So if his dad didn't try to get custody of him and DH wanted him (we've spoke about it and he's said of course he'd want him), would anybody actually come along and say that DH can't have him? There's absolutely no reason why he shouldn't, it's just that unfortunately he wasn't present on the night he was conceived.

Melonfool Fri 10-Jul-15 20:40:11

Named guardians in wills don't really have any legal standing - it is being the biological parent or having parental responsibility that is key.

So, if you named your sister, the father would still be the one the child went to. Social services have to decide what is best for the child and, as above, being a crap dad does not preclude someone from taking responsibility for their child if they are the surviving parent.

I would imagine that if dd has been in a family environs with stepdad and other half/step siblings and SD has PR then there is a good chance SD would get the residency if you die. Plus, if you leave any money/assets in trust or via SD then he'll also have the means to have her. Though, of course, ex could challenge all of that.

It is annoying that you can't get decent straightforward advice from a solicitor isn't it?

Starlightbright1 Fri 10-Jul-15 20:49:04

My Ex still has PR but not seen my Ds in 5 years.. I made a will stating where I wanted him to go and was advised to attach a letter explaining why my Ex is unfit to care for my child.

I don't know what would happen but I have done all I can

AcrossthePond55 Fri 10-Jul-15 21:00:33

I'm not sure but I don't think SS would necessarily be involved if there wasn't an 'issue' made. If (God forbid) you were to pass and DS were to just continue on living with your DH I think no one would question it. SS isn't going to swoop down and remove him. Now, if DS's father decided to raise a fuss it would be another issue.

When my auntie died my cousin (her youngest) came to live with us. My uncle was an alcoholic and unfit to care for her. There was no SS involvement and no legal papers. My mum and my other auntie went to the house and told uncle that he wasn't fit to care for cousin and she was coming to live with us. There was never any issues regarding enrolling her in school, routine medical care, etc. Of course this was decades ago. I guess what I'm thinking is if it's all 'low key' then no one will be the wiser. Just put it in your will that DH is to be the guardian and 'gloss over' the father's role.

catarratto Fri 10-Jul-15 21:06:47

I wish my ex didn't have pr. Unfortunately I allowed it thinking it would end the abuse aimed at me and was advised it was a token gesture with no real weight!! I feel ill thinking about my daughter with him. He is abusive and I can't believe she would have to be uprooted from her family and school. I have a residency order and read this may carry some weight if I allocate a guardian. Me and my husband are going to try for him to get pr but I don't know how easy this will be as my ex will no way agree to this. I can't sleep with worry. She's only 8. God willing everything will be fine with me until she is 18 and beyond. My husband said he will fight tooth and nail for daughter to stay with him and her brother. My eldest son has also said the same (he is 21)

catarratto Fri 10-Jul-15 21:11:20

My daughter hasn't seen her bio in 3 years and when she did said she didn't want to go due to the incidents that were occurring that I can't prove apart from when the police were called. He has a domestic violence history with police involvement. He always denies things have happened therefore insinuating my daughter is a liar.

AliceDoesntLiveHereAnymore Fri 10-Jul-15 21:12:09

Here's a number... 0808 8020 008. It's for the Coram Children's Legal Centre. Mon-Fri 8am to 8pm. Free solicitor advice. You'll have to keep ringing to get through, as they don't generally do callbacks, so allow yourself plenty of time.

catarratto Fri 10-Jul-15 21:15:56

Thank you very much. I'll phone them first thing on Monday.

Melonfool Fri 10-Jul-15 22:24:49

"I made a will stating where I wanted him to go and was advised to attach a letter explaining why my Ex is unfit to care for my child. "

You must never attach anything to a will, it can invalidate it.

You can leave a note with it - this does not form part of the will and is not binding on the executors. It's also best if your will mentions it. So, for example, mine says something like "and any items as mentioned in any note left with this will" - there is currently no note (though I keep meaning to put one that says 'there is no note' smile ). I am sure you could have similar in the will regarding child care and then a note slipped in with it.

But please don't attach it. The problem is, if it falls off and is lost, and it looks like something had been attached (staple holes, marks from a paperclip, a corner fold, etc) it could invalidate the will as it could make a court think the will was not complete.

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