Shared Residency Order-does anyone have experience please?

[newnamenewnom]

I've been advised to apply to court for a shared residency order . My ex wants shared residency and that is what we planned to do informally but because I am the one moving out, the solicitor advised I should get this enshrined in law for my own protection.

If ex doesn't contest will it be granted without us having to go to court. I'm worried my ex will be asked to write a statement which might go against me in someway.

Do I stand to lose more by going to court? Do Ex and I have to stand up and argue our case. What exactly happens in these proceedings. I'm worried I might be opening a can of worms.

Could the court decide ex should have contact rather than shared residency?

Any advice would be appreciated.

Sorry I just realise this would be better placed in Divorce/Separation- will report

There isn't any such thing as shared residency anymore, it all changed in April. And if there's no question that you have shared care of the children, the court won't make an order. Or to put it another way, they will only make an order where one is absolutely necessary.

Does your ex agree with your "informal" arrangement? It's isn't normal to go to court. You only go to court if you don't agree.

Before you could get an informal agreement to be formalised by court, is that no longer possible?

Whereabouts do you live and was the solicitor a family specialist? Family law is different in Scotland to that in England & Wales.

In E&W residence and contact orders have been replaced with child arrangement orders. However there is a no order principle which prevents the court from making an order unless it is better to make an order than no order. Often where it the living arrangements are settled and agreed there is no need for an order and therefore there should not be one.

As others have said - there is no such thing as a Shared Residence Order. CAOs (Child Arrangements Orders) can - but don't have to - specify who a child `lives' with.

Bear in mind however that this confers almost no additional status over the parent the child doesn't `live' with. Parental Responsibility is the main thing. A parent with PR has rights to be involved in their child's medical treatment, education, etc.

Who the child lives' with has no bearing on the quantum of time either. Basically...<strong>it's a label that means very little</strong>. Of course, a lot of parents get very attached to this label to be the main carer' or the resident parent' or the kids live with me'.

As a McKenzie Friend I advise my clients to concentrate on the quantum of time. Under the No Order principle it can often be argued that giving someone this line in a CAO is meaningless. I've also known NRP's (the term doesn't exist now but the concept does) to use the RP's insistence on having this status - as a bargaining chip to gain additional time.

Basically, don't bother. Most of the parents who tell me they want a Residence Order are unable to say why they want it. It's a label.

We'll move this for you now OP

"I've also known NRP's (the term doesn't exist now but the concept does) …"

"Non-resident parent" was, and still is, a term used in child support legislation. s3 Child Support Act 1991 as amended defines a NRP as the parent who is not living in the same household as his/her child when the child has his home with a person with care.

The fact that no new orders are used with the terms non resident parent or the parent with care doesn't invalidate previous orders where the terms are used.

I really find this new developments fascinating at stating the obvious.... No order to be made unless it is better to have an order than not??? Because obviously, so many people in the past, spent thousands of pounds to have a fun day at court....

Personally, I still have to find a single person who asked for an order at court before it was absolutely necessary.

It was a comment specific to the OP who seemed to imply there was no conflict over whether there is shared care of the children. If both parents are in agreement, why would the court get involved?

Actually in England & Wales there has always been a no order principle in the Children Act 1989 which prohibits a court from making an order unless making an order is better than no order. Many court cases are resolved by agreement. Some people think they have an order when the agreement is recorded, but if the agreement isn't in a section headed by "order" it isn't an order.

"Or to put it another way, they will only make an order where one is absolutely necessary"

We agree to shared residency but I am primary carer and as I am having to move out of family home, solicitor has said I absolutely need this confirmed in law to protect myself as what would stop my ex later going for residency if my landlord made me homeless. Obviously he could do that anyway but this way I prove I had shared residency.

"If both parents are in agreement, why would the court get involved?"

Solicitor told me I must absolutely have this order before I move out of the family home. I think it's because I am the mother and primary carer moving out.

Even if you had a Child Arrangements Order stating that the children live with both of you, if your circumstances change and you couldn't house the children (unlikely) then your ex could go for a variation and ask for a CAO equivalent of sole residence.

The only real thing a CAO equivalent of a residence order affects, as far as I'm aware, is changing the childs surname and taking the child abroad.

I'd be getting a second opinion from a different solicitor or at least asking your solicitor about the No Order principle.

Thanks for the advice everyone. I don't think I could afford solicitor again. Would citizen's advice help? If I pay the £200 court fee will they just write and tell me they are throwing it out at outset or will they allow me to argue my case.

The solicitor was pretty scary telling me I would regret not fighting for the family home for the rest of my life- nice to hear. He also told me it would cost 20,000 not to be in this position. I have the feeling a lot of solicitors want a fight

Well I was the one who moved out (primary carer, DS moved out "with" me) and nothing like this was ever mentioned by my solicitor.

Is your stbex staying in the fmh?

I agree with your solicitor but I hate his pushy style. Hear the advice but there's no need to go back.

I know you are going through a very stressful time but my advice, considering the lack of funds, is:

1. get The Which? Guide to Divorce and read it carefully.

2. use the half an hour free appointments the solicitors offer to ask about the very specific questions about the particularities of your case only. No need to waste those valuable minutes in general advice you can read in the Guide.

3. Once you know where you stand, decide whether you still want to leave the house or not.

4. Apply for mediation (it is now expected that family matters should be dealt by mediation before court involvement is considered, unless there is a history of abuse).

I know that at this time you would be yearning for someone to tell you what to do and what would be best. That is not going to happen, as you are the only one who knows your own circumstances fully so, as daunting as it feels, start reading, get informed and then take your own decisions.

I'd think very carefully about leaving the FMH - I did that and I really do regret it.

Really not sure about his scare tactics on needing a CAO when you are both in agreement for shared care though. I'm the primary carer and moved out of the FMH and have never needed a court order. If you have 50/50 care then a judge would want a very good reason for changing the status quo even if you were made "homeless".

To pp- we did try mediation it failed as ex wanted to hurry it through and get things wrapped up in one session.

"I'd think very carefully about leaving the FMH - I did that and I really do regret it."

I don't really have any other option as ex's family put down a large deposit and are accusing me of trying to get hold of it (solicitor pointed out it was a gift and therefore strictly half mine anyway though im making no claim).

yes i could fight him for it but they would throw everything at me and i'm not sure a lengthy court case would help anyone.

How could i prove 50/50 care though? it will be more like 70/30 though the nights will be 50/50

There are many ways to share care. Shared care can be in different proportions, it doesn't need to be 50:50. With or without any order the de facto relationship is important because generally children's interests are deemed best served when there is a continuity of care and many of their routines are maintained.

When there is evidence that in reality the established arrangement is one parent has the majority of day-to-day care it's unlikely a court would disrupt children's sense of security and established bonds by changing the arrangement very much, unless there is evidence the children aren't surviving satisfactorily in the care of the parent.

A court order or recorded agreement would be evidence of the pattern of care if there was a dispute later. Alternatively, although they aren't legally binding, a signed voluntary parenting plan agreement with a schedule attached and evidence from school/nursery/child carers, GPs, receipts for child related expenses etc may be used.

IF you were married the priority when sharing assets is the welfare of dependent children. Being responsible for housing children for the majority of the time for many years until they reach maturity means your needs are greater than your ex's which may justify a larger share of assets in your favour. In some circumstances when there is no other way to keep a roof over the heads of children a sale of the former matrimonial home can be deferred until the children reach maturity.

What counts is the nights, you may be spending the whole day with the children 24/7 but if they spend more nights with his dad, he is the parent with care. Yeah I know that the terms are changing but child benefit and any other lone parent support (tax credits, universal credit, lone parent support, etc) are paid to the parent who has the children for more nights. If your salary is low or non existent, and you are likely to require this help to survive and provide a place for your children to stay with you, make sure that you are the one who have them for the higher proportion of nights.

This may sound petty but... Ultimately, if you have a low salary and do not receive benefits, you may end up not being able to provide a reasonably comfortable place for your children to stay over. Which in time may have an impact on how often the children want to stay with you or put their dad into a better position to ask for the amount of nights the children spend with him to be increased.

I think that you need to be very careful and do your homework before you agree to anything, be it child arrangements or leaving the house.

By the way, the fact that the inlaws put money towards the deposit doesn't make them owners of the house, half of the equity of that house is yours because you are married (or more, if your housing needs are bigger than those of your ex, ie, because your income is lower).

A quick solution is not necessarily for the best, especially if it can land you in financial hardship for years to come.

I am not married. The plan is we will have the nights 4/3 and then 3/4. I currently claim the benefits and child tax credit/working tax credit. I gave all my details to the tax credits people and they accepted I was single though living in same house. They did say I might have to prove this later. Not sure how.

Ex is happy for me to keep all the benefits as he wants me out of the house and its the only way i can afford it.

Ok if you weren't married property law is relevant rather than family law. When both parties are named on the deeds the starting point is each party has a 50% interest in the property unless the deeds state otherwise. Unfortunately arguing the toss can be expensive and not worthwhile if there isn't a great deal of equity. Sometimes it's possible to make a claim under family law for a property to be made available for a child to be raised during their dependency and for special expenses.

Arrangements for children are dealt with separately under different bits of legislation. IF overnight care is to be 3/4 or 4/3 it's going to be so close to 50:50 it won't make much ,if any difference, to living/contact arrangements.

"Parent with care" and "non resident parents" are terms used in child maintenance legislation. They don't have (and never did have) any meaning when it comes to arrangements for children. Under the Child Maintenance Service rules neither parent is the non resident parent when care is shared 50:50 overnights so there are no child maintenance payments.