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Divorce/separation

Here you'll find divorce help and support from other Mners. For legal advice, you may find Advice Now guides useful.

Original poster

How do i get my boy back?

164 replies

Justmomma · 29/12/2018 21:30

Background: I had my son at 23 he is now 3 years and my hubby and I have recently seperated and definitely heading for divorce. When he was 2 we agreed that he would stay with his grandma for a year during the week because we both work long hours and childcare is expensive. He was to return and stay with us at age 3 when we get 30hours funding and can afford extra hours child care. We seperated a month to his birthday and ex has now moved to his mum and feels our son should stay there with them and i can see him twice a month over weekends. Help! What do i do? How do i get my son back?... also he is not the biological father and he is aware of this but he says it is his right. He is on the birth certificate because we were married when I had my son.

OP posts:
Notacluethisxmas · 30/12/2018 13:38

The child hasn't been kidnapped. The child is with the person who has been the primary carer for the last year and with their, legal, father.

Right now, that's the situation. As the mother she doesn't have anymore rights to have main custody than he does. That's this situation now.

Even when the BC is changed it may not be as clear cut as the OP wins. Because she isn't the primary carer right now and hasn't been for a year.

Notacluethisxmas · 30/12/2018 13:39

Will people stop wittering on about fraud.... it’s not relevant, almost certainly not true and isn’t helpful...

It is true and it shows the op was happy for him to present as the father. It's not going to be that easy to just cut them out of the child's life.

Worriedmummybekind · 30/12/2018 13:40

OP these things are complicated and legally the ‘grandparent’ may be able apply for rights/contact.

There does seem to be a possession being 9/10s of the law attitude. So I do think your best bet is to regain custody immediately. Ensure he is in nursery. Get step dad removed from BC. Then/if when step dad or step granny take it to court they may or may not get some form of contact but are much, much less likely to get residency.

NotANotMan · 30/12/2018 13:43

You may not be able to correct the birth certificate, and if you do, the court may not remove his PR anyway
You also can't just go and get your son, he's where he lives along with his legal father.
You need to go to court to apply for a child arrangements order but you have made a right mess of things by sending him to his grandparents, that was a really stupid course of action for many reasons.

Orchiddingme · 30/12/2018 13:45

That is why I have suggested to the OP she reasserts her own rights as she has PR and can become his primary carer at this point as she was for the first two years.

The fact that the arrangement was for 12 months make me think the MIL/husband have their legal ducks in a row. I suggest the OP does the same.

NotANotMan · 30/12/2018 13:48

She can only reassert her rights through the family courts and there are no guarantees that they will do what she hopes

Orchiddingme · 30/12/2018 13:51

OP please do get urgent legal advice as soon as the solicitors open after the New Year.

Best of luck.

MummySharkDoDo · 30/12/2018 13:52

If you are seeing the child twice a month I’d just nod and wait until this time, then simply not return the child personally

Santaisfastasleepatlast · 30/12/2018 13:57

Ime :
Dna tests via solicitors.
Take results to registrar.
Correction made =automatic removal of PR.
Collect your dc.
Exh can apply for contact as a dc of the family ruling.
So can his dm apply for gp rights to be granted as the dc lived with her.
Never was prosecution for fraud mentioned to me by anyone at all. Not even the judge.

troubleswillbeoutofsight · 30/12/2018 13:58

I’d live on the streets before giving my two year old to a non related person to care for for over a year. Yes child care is expensive. This is a fact and hasn’t changed in many years. So the only biological parent in this mess gave her child to someone else to raise. The child should actually stay exactly where he is. He’s been there a third of his little life

Orchiddingme · 30/12/2018 14:03

I understood the OP to say that the child was staying there during the week. So, like nursery with sleepovers. Back with parents during the weekend. So- OP has been like many dads in her level of contact, two full days on weekend, and would now like to up that given she is the bio-mum!

Strawberry2017 · 30/12/2018 14:10

You need to really think what your priorities are and sit and have a good think about what you want from life.
Yes childcare is expensive but you don't just send your child away for a year so you don't pay it. You make it work.
I'm sorry but your age is not an excuse.
You need to grow up, and start putting your son first.
He deserves honesty and a parent who doesn't only get in contact with his bio dad coz it suits your circumstances at the time.

homebirds · 30/12/2018 14:12

Please think about the child and where his security lies. Please don't just take him away from what he considers to be his home.
You're getting some terrible advice on here.

NotANotMan · 30/12/2018 14:12

5 nights per week with his grandparents makes them the main carers. If the father is now there too then that's the status quo and the courts are quite likely to maintain that

Surfskatefamily · 30/12/2018 14:16

I think first thing to do is try and calmly arrange better contact for yourself.

Secondly legal advice...including dna test and correcting the birth certificate.

Thirdly consider where is best for your son. If you are unwilling to put your career on the back burner that may be at grandmas.

If you can take time off work or sort out child care and you decide that is with you then you can fail to return him to their home once the birth certificate is corrected.

It is probably fair to your son to maintain some contact with his dad of 3 years and grandma

Notacluethisxmas · 30/12/2018 14:19

So, like nursery with sleepovers. Back with parents during the weekend.

So not like nursery at all. Nursery is paid childcare, with a contract etc. I don't know any nurseries that have children living with them every hour Monday to Friday. All children in nurseries return home at some point during the day.

The child's main residence is with the MIL. It's not nursery or even like nursery.

ShartOfGold · 30/12/2018 14:19

God, what were you thinking?!
Why did you pretty much hand over full custody of your child to someone you know isn't related to them?
Even if they were related, I struggle to understand why you would willingly become a part time parent.

Good luck OP, I hope you manage to get your son back. I think you may have a fight on your hands but I hope it works out!

GinIsIn · 30/12/2018 14:46

There’s a lot that doesn’t make sense here. You’ve been with the father 6 years but the child is 3 and he’s not the father, and you’re sure of this? Despite that you’ve put him on the birth certificate, been happy for his mother to be the primary carer, but now you’d have no problem just ditching all that support that you needed so badly you don’t even love with your child...? Right.... Hmm

CannotFindAUsernme · 30/12/2018 15:03

Perhaps OP is not telling us the full story of what her life with her OH was like. Perhaps we need to consider that and not be quite so judgemental of OPs circumstances.

Notacluethisxmas · 30/12/2018 15:07

Yes let's cast op as the victim rather than belief what she has said and put the child's welfare first.

IceRebel · 30/12/2018 15:13

So, like nursery with sleepovers. Back with parents during the weekend.

What a strange comment, it's nothing like a child being at nursery. The child was being looked after full time mon-fri by a family member, presumably free of charge. The Op herself makes it sound like she didn't see him at all during the week, so naturally he will see the grandma as a primary carer, and the house as his home.

GinIsIn · 30/12/2018 15:22

It’s not remotely like nursery with sleepovers, more like foster care.

LuggsaysNotaWomen · 30/12/2018 15:54

All those saying that this is now the child’s permanant residence, would you be saying the same if OP and her DH had stayed together and took back the child once the year was up, which was what was agreed? The child was always going to leave the Grandma’s care so it’s hardly the same as ripping him from his forever home.

It was a compromise for one year of his life, OP did not relinquish her maternal rights just because she accepted help from another person. Many parents (often fathers) do not live with their children during the week and it doesn’t necessarily make them uncaring parents.

Would it be psychologically the best thing for the child to be separated from his mother, with whom he is also bonded with and who is willing and able to look after him, and live with non-biological relations? I don’t think so.

That said OP, this is a mess and I would caution against just taking him back. Get some proper legal advice, get your ducks in a row and do your level best to do this in as unaggressive way as possible. Your child has a bond with these people and whilst I don’t think he should live with them, it is not in his best interests to sever contact either.

coldheartwarmhands · 30/12/2018 15:57

All those saying that this is now the child’s permanant residence, would you be saying the same if OP and her DH had stayed together and took back the child once the year was up, which was what was agreed?

After 12 months, the grandparent would have the right to apply for a child arrangement order and a Court would judge - it's quite possible that the DC would be court ordered to remain with the grandparent after that length of time.

Notacluethisxmas · 30/12/2018 16:08

LuggsaysNotaWomen no one said it's his permanent residence. But have said it's his main residence. And if the parents were together, it would be different again. I would talk the op that she needed legal advice because the MIL could fight her and her husband on it.

But as it stands one legal parent lives there with the person who has been the primary carer for a year in the child's main residence.

The op is being advised to go get the child and have the BC changed to try and stop her husband from having PR. Despite the husband being the child's father in law and in practice and the MIL being the main carer.

She wants to save the legality to them. But a court may not see it that simply. She has allowed a man who is not the father to act as the father but wants to put a stop to that now it doesn't suit her. She wants to stop any legal the between the main carer and the child. A court may believe that is not in the best interest of the child.

So yes she is wanting to rip the child away. She wants to put an end to the legal the because it no longer suits her. The lol have served her purpose.

The child is already separated from his mother for long periods of time. The op is the mother, to the child the husband is his father and mil his main carer. It will be damaging to just remove those 2 people from his life. Given MIL is the main carer it could be argued that it would be worse to remove the lol than the parents.

If fathers can live separately from their children and be good caring parents, why can't the op?

These are the ci sequences of the choice she made for the child. From lying on the birth certificate to becoming a part time parent.

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