daughter does not want to go to her father -- what is best for her and her brothers?

[leilasmom]

My ex and I completed a very difficult divorce last month that featured a year and a half of court and a custody battle. He was emotionally abusive in the marriage and conceded that in court, and also that he has anger management problems (he had a long therapist report acknowledging this and stating his amends). He also has serious ocd he kept archived records of absolutely every aspect of our lives (position of garden flowers, number of times sex/year, with dates, images of ceiling roses in the house those he bought and those he considered, and so on). He had an "agony index" that recorded his misery. He used to yell and demean me in front of the kids (he would say things like "What I do for work is for the family; what mummy does is for herself.") Within 10 days of giving birth to our third he said he wished I would fall under a bus and die. He also called me stupid, an idiot, and useless, etc. He was far worse to me than to the kids. I thought it had to end after I lost 20 pounds and 1/3 of my hair.
I sought to have custody, with him having every other weekend and all Thursdays. He fought for and got 50/50% custody.
The older 2 kids were interviewed by Cafcas; the 12 year old said he thought 50/50 was fair. Our daughter, 8 then and 9 now, said she agreed with her brother, but afterwards has said she did not like either the process or the officer, and that now, a year later she does not want to go to her father. Our 5 year old son says the same, and that daddy yells a lot. The younger two have insisted on sleeping with me for the past two months.
I do not want to reinitiate a fight because I think it would trouble our 12 year old son, and I have seen that the court at this moment in time has a strong preference for 50/50 arrangements.
I would add that I work 2-3/5 days from home. He works out of the home, almost always. This means our kids are often not with me or even him, but with a nanny at his house.
I should also say we do not fight in front of them, nor even between ourserlves. It is, and has been since the separation, very much a cold war conflict.
What can I tell our daughter and do I have any recourse? What about our 12 year old son how can I not upset him by reinitiating conflict? What about our 5 year old?

I am sorry for the long note -- but I think there are a lot of details and they are important! Thank you in advance for any thoughts!

If there is a court order in place I am afraid you will have to take it back to court if you want to change it and he doesn't agree - otherwise he could take action to enforce the existing order if you decide not to obey it.

Your children are all too young at the moment to make it likely that a court will let them decide what happens - although your 12 year old Is probably quite close to the age when they can and do vote with their feet.

Contact is supposed to be what is best for them - no contact order can ever be set in stone as children's needs change as they get older.

I would try discussing this with him, see if you can come up with an arrangement that works better. But I can see this might not be easy.

If he can't or won't discuss it then I am afraid your only option is to go back to court and request a fresh CAFCASS report.

Thank you very much for this helpful response. I am sure he will not discuss as he gets very upset by far smaller matters. I will most likely wait and see if another CAFCASS report would be helpful for the situation and then initiate a discussion with him about resolving it. Perhaps mediation might work this time around, given the finances. I also would like to make sure that the two younger ones are definitely sure of what they want. He does manage them poorly though and I hate the fact that my ending the marriage left them with no one to protect them. I never wanted that and fought so hard for them but now am watching them feeling very unsettled.

It's horrible to have to look from the sidelines, I know. If you think mediation might help, its got to be worth a try. If he can understand you just want to to do the best for the children, you might be able to move this forward.

I guess there is a risk that he might feel you are attacking him so I think the key is to try and re-frame it for him that you both want to work together to do what is best for the children.

I am not really a fan of these 50/50 arrangements - I think generally children are better off with a fixed 'base' but knowing they will see a lot of the other parent. 50/50 may not work as they get older, you are both going to need to be flexible.

I hope you get some resolution that works for you all.

I don't know the law here but if the kids are not happy then that's not in their best interest- surely a court would see that? How was 50/50 given? Do you both live close to one another?

Its not that simple unfortunately. Children can present as unhappy for many different reasons; sometimes they feel torn between two parents and will say different things to each parent to keep them happy.

The courts in this country are bound by domestic and international law which states that a child has a right to a relationship with both parents, unless it isn't safe for that child or he/she is at risk of harm. So the court can only act on evidence, it cannot end/restrict a parent's relationship with a child just on the say so of the other parent.

And even if there is evidence that the children are being made unhappy by the behaviour of one parent, the court still needs to weigh in the balance the harm that might be done to the child of losing that relationship. It can be a very big deal for a child to lose that one half of his/her genetic identity.

These are rarely simple matters.

Yes I see. On what basis does 50/50 custody get awarded?

It's not about mathematical precision. It's about what's best for the children. Courts often like a Child Arrangements Order that specifies the child shall live with both parents as this reinforces the importance of both parents in a child's life. But trying to carve up their lives so each parent gets 50% of the time is - in my opinion - really foolish.

I think most children would benefit from having one home. You don't see parents agreeing to move in and out of the former family home on a week on week off basis - because that is not a nice way to live. So I don't see why we should expect children to do it.