Ex is applying for PR & Residency Order...

[Merrythulu]

Ok, I'll try to be as brief as possible -
Relationship ended in 2005, when DC's were 6 and 2.5. From the moment of moving out he didn't pay a penny for the DC's or the house. In fact, I lent him the first months rent & deposit for his flat, which has still not been repaid. In short, DH (with whom I have 2 dc's) and I need to move - for several valid reasons. I have ME, the 3 bed maisonette is not suitable for 6 of us, & DH has a 5 hr commute. After exploring the local area, & the counties either side, we looked at DH's home town, and it ticks ALL the boxes, save proximity to XP & my parents. So in September, a month before we put the flat on the market, we wrote to XP to tell him the situation and suggest ways in which his contact could change (without technically being reduced). Currently he has them Weds & Thurs nights 3.20-8 and every other weekend. Keeping up this level of contact with a 120 mile move would be hard, but do-able. We suggested keeping the alternate weekends, but moving the midweek dinners to become extra holidays on top of his half.

Without sitting down sensibly to talk about it, he (as we expected because he's a twat) has gone to a solicitor and has threatened to go for PR and a Residency Order to swap the arrangements around because I have ME, and because he says moving will unsettle the children and disrupt their relationships with him and his family. He says that the children are showing signs of strain from having extra responsibilties (we think they have a normal amount of age-appropriate chores, and employ someone for six hours a week so they don't have to do anything above that) & we think he's worried that he's not going to see the children, which obviously isn't true.
DH and I think that there's not much chance of him succeeding, as a) we're not denying him contact, or even reducing it, just changing it. b) he lives with his parents, has to walk for 3 minutes to get to his work & has never bothered to learn to drive. c) He's done less school runs that I can count on one hand, only started paying maintenance last year when we went to the CSA, and has never contributed to child care costs & insisted that we do his school runs for five years, threw a hissy fit when we said that would have to change, has done very little homework with them, even when they were seeing him 50/50 in the early years e) has a long standing record of being a daily heavy cannabis smoker, alcohol abuse & self harming after the split, which happened because he was shagging someone from work and because he was a twat who wouldn't grow up and oh, he also owes us about £50,000 in unpaid maintenance, petrol costs, childcare costs, and mortgage extension loans etc.
But I'm still shitting myself that he could take DD and DS1 away from us.
Any ideas.

Get Legal advice ASAP

As your children are I'm assuming 11 and 8.5, the courts will definitely be listening to the eldest childs wishes at least.

Is his drug use documented because if it isn't, the courts will not listen.

I'd assume if the children are healthy and happy and school and GP have no concerns regarding their care with you, the courts won't rock the boat. However that's my own personal opinion, I'd certainly get legal advice.

yes, but what do you do when you can't afford legal advice, but don't qualify for Legal Aid (I've heard it's pretty much abolished now?) I need to check all this out, properly, don't I?
The Family Outreach Service lady said she'd get me to see a CAB advisor at a children's centre, so I'm guessing that will help, but I don't know when that'll be, but DH and I have written an initial letter, detailing our circumstances, with acopy of the original email and an excel document detailing all the money he owes us. I don't know if the drugs are documented, but my health visitor used to be aware of the situation, so I'm guessing she'll be quite helpful.

The legal aid reforms in England & Wales haven't happened yet. The MoJ has announced a six-month delay in the implementation of the civil legal aid cuts so there might be a watering down or u-turn.

At the moment the earliest the LA reforms will come in is April 2013.

You need to get some legal advice.

If your ex is named on the dc's birth certificates he will certainly be given PR. Even if he is not on their birth certificates the courts can order a DNA test and he will still be given PR.

WRT the amount of money he owes you, I'm afraid the courts are unlikely to take that into account as all that is relevant here is what will be in the best interests of the children now and in the future. Similarly if he has a history of drug use that will only be admissible if there is documented evidence to prove it. Obviously his relationship with the children will be taken into account i.e. does he have regular contact with them etc, and at 8 and eleven their own wishes will also be taken into account. What do they say?

Ultimately nobody here can tell you that he will or won't be given residency because every case is different. So you need to seek some professional legal advice, and if you can't afford that then you need to find a way.

does he have them overnight at his parents?
if he has no home for them, how does he expect to have residency?

what is the worst that could happen? all things considered, in best circumstances, he could get residency to keep DC where they are school etfc and you get the alternate weekends and holidays.

to counter this - you need to say why this wont work and is not in Dc best interest. what arguments can you put forward? eg he has no home for them to stay. do his parents ahve large house giving them their own bedrooms?
can he put forward cohesive argument why dc should have main residence with him?

what would Dc want?

money owed to you may not be relevant - residency/contact is separate from finance... past drugs issues may not be relevant either if he now clean has a good job etc.

Leave all the stuff about money to one side. That has no bearing on deciding residency and contact.

A court won't give him sole residency. It just wouldn't happen unless either you regularly inject heroin into your eyeballs or something similarly horrendous, and/or you have a long history of ignoring court orders regarding contact.

Realistically, if this does go to court then the court might do one of three things:

1. Send you off to mediation, or
2. Say that you can move, or
3. Say that you can't.

The court's decision will be on the basis of what is best for the children. From their point of view, they'll need to move schools, lose touch with existing friends, and be a long way from their dad. On the plus side, they'll have a bigger house. The court will want to know how you propose to maintain the children's contact with their father, and this will include how the journey will be done. Will you expect your ex to travel to you, or for your DCs to travel to him? It's good that you are proposing to make up for the lost contact time in the holidays but do be careful that you don't end up with you not having them for any holidays at all.

On the face of it I can understand your ex's unhappiness as, at present, he's seeing his children at least two days every week and that will drop drastically. And, while you know that you won't move far away and cut off all contact, it is inevitably something that he is bound to worry about.

Him going to a solicitor may or may not be reasonable depending on how imminent he believed your move to be. As he doesn't have PR then, right now, he is powerless to stop you moving. (Incidentally, you can agree to him having PR without that having to go to court. You just both need to sign and get witnessed a Parental Responsibility Agreement and then send it in to be registered. If you voluntarily do this then it might reassure your ex that you're not trying to squeeze him out.)

If the move isn't imminent then I'd suggest you propose mediation as an alternative to court. At best you might be able to come up with a workable compromise. At worst, you will at least be able to say to the judge that you tried to negotiate with him.

Living with him would also jeopardise their relationship with their younger siblings - you migth want to mention that too!

Yeah, Dh and I have written a 7 page letter, including a copy of the email sent to him in September, which suggests several ways for his alternate weekends to work to his advantage - what we're stressing is that not only have I always been the primary carer, but the children have never been unduly put upon because of my ME, other than what an average child would do to help out in the average home (i.e. clear/lay the table, etc)
We're also pointing out that while DH has been a hands on parent at home, we did HIS school runs, paid for all the child care, he didn't pay ANY maintenance until last year, so although the children would have their own bedrooms, he would be relying on his parents to support his full time job, or he would have to reduce his hours in order to look after the children. We're trying to stress to his solicitor now what an unreasonable, aggressive, argumentative individual he is (in a way that is considered unbiased, unemotional and acceptable,) so that his solicitor can see what kind of a misogynistic, manipulating, lying, swindling twat he is. We sent XP the email a month before moving so we could talk to him about it - his answer has been to go straight to a solicitor and then dripfeed the children emotional codswallop about how life would be so great with him, so now they say they want to stay with him, although their first reaction was to be really excited about moving. DD has said since I asked that she really doesn't know, and really doesn't want to make the decision.

We've also pointed out that for DH to do a 5 hr commute is unsustainable on a daily basis, and we have 2 other DC's and all of DH's family to consider as well.
We've also said we're happy to go to mediation, but does anyone know who pays for that?
It would be a completely different kettle of fish if DH had actually taken responsibility for looking after the kids since 2005, but he's had all of the benefits and none of the day-to-day responsibilities, so it seems horrific to me that he could do this. Yes, the worst case scenario is that he has them for term time, but DD was so excited about going to the Outstanding school originally, and as she's just gotten into a G & T group I feel it would really better her prospects.
Seriously, is a court likely to split them up from their siblings so they can stay at the same school, see their cousins once a week and be parented by their gp's, just because I have ME?
I feel like I've been trapped here for so long by that bastard, I just want to be free from him, and was so sure we had a strong argument, but maybe that's not the case. I could cry.

I think we all understand why you're so pissed off with your ex. His selfishness regarding money will inevitably make that irritation,worse. But, honestly, if you keep mentioning financial stuff to his solicitor it really will not do you any favours. Seriously.

I'd also ease off of mentioning how awful your DH's 5hr commute is. If the journey is so dreadful you don't want your DH to do it that raises the inescapable question of how could it nevertheless be fine for your DCs to do it?

But I can't see them it will come to the point where your children will be split up unless the court rules they should stay where they are but you decide to move the rest of your family regardless.

They're not going to give him sole residency.

i dont think your ME will come into it any more than him being argumentative will.

you need to focus more on what is in the best interest of the DCs .

why it benefits them to move away and reside with you for school etc and visit with their dad, rather than the other way round.
given there are no welfare concerns (he has them twice a week and alt weekends already) him being a bxxxd to you is irrelevant...so likely to shared residence on paer - but how that is divided eg where they go to school, where do they live during school term time - is the key issue...

Thank you all for your comments - it's been really helpful. That's the whole point - when they stayed overnight with him in the week, stuff would always disappear over there, they wouldn't ever do homework over there - DS's reading record alone has always shown up what the imbalance is, as the signatures are all mine, my DH's or my DSM's.
What I think we'll have to stress is that DH's commute (twice daily, in rush hour) by train, means he has to travel for 25 hours a week. If his company moves to where they're suggesting, that will nearly double.
IF we move, then the DC's will have 10 hours a month to travel, and XP half of that, as we'd do a journey for one weekend, and he would have to do the other. That's why it seems so unfair to us, that he's having a tantrum because his midweek dinners would change to extra holiday days on top of his half, and because it's going to mean that he'll have to make a journey once a month to see the kids.
But from the letter, it looks like he's going for this Residency Order regardless of whether we move or not, on the grounds that the kids would be better off with him because of my ME, so let's hope you're right, Snorbs!
We've made an appointment with a solicitor that was recommended to us by the directgov legal helpline, but as it's £75 for the first half hour and £195p/hr after that, I may well do some shopping around!
I'll have another look at the letter though, and take all your points into consideration, so many many thanks!

You keep mentioning your DHs travelling being an issue.

Is that relevant in dealing with contact between your ex and his children?

Also the argument seems to me it isn't acceptable for your DH to travel, but it would be ok for your DC and Ex?

If I was 'told' something was happening I don't think I'd be very happy about it, and as you think he's a twat, you can't be too surprised at his reaction.

I think legal advice is required.

waiting, there's a big difference between DH having to travel for 25 hours a week, (which may well be nearly double that if his work suddenly moves to Suffolk and we're stuck in Sussex,) as opposed to the kids and whoever's taking them, us or him, to do a 2.5 journey either side of a weekend, totalling 10 hours a month.

Of course DH's travelling has an effect on us as a family - it means he doesn't see the kids at all during the week if he's in every day. It means the older two have to get the bus to school and back if he can't do the school runs, or it means my parents doing it so they don't have to travel home in the dark. It means that I'm perpetually pushing myself to look after the kids, which I cannot do alone at the moment, and so the older kids have to help out more than they usually do - which is his entire point - regardless of whether we move or not, he's saying that I should not be the kids primary carer as I have ME. Having parented the older two on my own in the past with ME, on more than one occasion, he knows that this will destroy me as a person, and it's why he's doing it. He doesn't care that he might split up the older two from the younger two, or that in 8 years of schooling, he's done nothing except for turning up to parents evening. He doesn't even care that his elderly parents who he lives with, and sponges off, have now had their children and grandchildren living at home for over 40 years, and must be sick to the back teeth of it, as they were when XP's older brother lived there with his daughter before XP moved back in with them.
We haven't 'told' him it's going to definitely happen, we've said it's looking likely and instead of talking to us about it like adults, he's gone straight to the solicitor's and going for a Residency Order. He's being vindictive and unnecessarily vicious about this. DH is very pragmatic and calm about these things, says that if he were in XP's position, living with his parents, with an ex who'd remarried, had more children, and needed to move, said he'd say 'fair enough, I'll still be seeing them every other weekend and for most of the holidays, and their family life is more stable with you, so fine." But then DH would have been paying maintenance from the start, and just wouldn't be anywhere near as much a twat as XP.

With respect Merrythulu, the more you write about this the more I'm tending to see your ex's point of view. You are not presenting this as anything to do with the best interests of your DCs but, rather, it's seems all about what will make your life and, in particular, your DH's life easier.

At present, your children see their father six times a month. You are proposing that this changes to two times a month. I wouldn't be happy if my ex suggested that. I'm really not surprised yours has not just rolled over. By the way, do you have a moving date?

To your credit, you are suggesting that your children will be able to spend more holiday time with their father. However, it sounds like they already spend half their holidays with him and so there will inevitably be a limit to how much extra holiday time they will realistically be able to spend with him without it ending up with them never being with you during holidays. So your childrens' time with their father is likely to reduce overall.

You also suggested that your DCs used to see their father 50:50. When and why did that reduce to the current plan? Was that his idea or yours?

You are proposing that one weekend a month your children will see their father in your new town. How do you see that happening? Him staying where you are in a hotel? Or in your home? Or him turning up and then taking the children back to his? Is public transport reliable enough on a Saturday/Sunday for that to even be feasible?

Let's say you do end up in court. At some point it is likely that the judge will ask you why this move is in your DCs' best interests. If you answer "Because it will make their step-father's commute shorter" then I suspect you'd get very short shrift because that is nothing to do with your DCs' relationship with their dad.

The bottom line here is that while it is incredibly unlikely that a court would award your ex sole residency, it is quite possible that they could award you both shared residency. It's happening more and more these days. That doesn't imply 50:50 time, but it does mean that he would have as much of a say as you do over matters such as choice of school. And, as moving house would involve the DCs moving school, you could be stuck.

You mentioned earlier that you just want to be free of him. Sorry, but when you have children with someone it just doesn't work like that. Trust me I understand the emotions behind such a desire, but you need to be careful that your desire to get away from your ex isn't clouding your judgement about what is really in the best interests of your children.

Understandably you are angry about having to think about an unhelpful ex in all of this when you are keen to move on and move away with your DH. However, the court will just focus on the children. So pick out the bits in your favour as regards them ie splitting the family up. Financial stability for them ie DH's job, but basic way to do this is put children at the top of the list.
I think you need to sort your anger out at ex's behaviour and box it away for dealing with legal/court side.
Draw up a very sensible, detailed, timed plan and work out the hours. If my maths is right then DC1 is 11 so Cafcass will take their wishes and feelings into account and will probably listen to, if not entirely follow the wishes and feelings of DC2. Have a look at sites that put ex's point of view and then you'll be better prepared to counter ex's arguments with reasonable, rational ones of your own. And yes, courts hate the money stuff being brought up. The less resentful you feel (however justified it may be in your own mind) the better. Get someone to play devil's advocate with you, then take plans to a solicitor.

Snorbs gives good advice.

I have been through something like this with my DS1 father. It took years to sort out mainly because I was defending myself and he enjoyed bullying me with a solicitor. Eventually a mediator sorted it all out.

The mediator was only interested in DS1's welfare and happiness he took no interest in any personal gripes between me and fuckwit - not financial, not relationship, not employment, not anything.

The courts were sympathetic to me representing myself and I did not need legal knowledge just quite a lot of backbone :)

In the end it cost him thousands and I won the case.

Every case is different but I just thought I'd let you know it can be done and it feels great your ex sounds equally as unreasonable as fuckwit. But also this may take a while to sort out.

What about the 2 younger children and their relationship with their father? There are 4 children to consider here. I think you go through so many emotions with court issues and contact. I feel for OP, it's so hard.

Thank you yummy. I've just spoken to a friend who went through a similar thing with her (MUCH worse) ex. She gave me some hope and confidence, because she read their letter, ours that we plan to send, and said she thought we'd taken EVERYBODY into consideration, that we were being more than reasonable in our suggestions, and told me about how she represented herself in court, and what happened.
While a lot of what I've said above and in the letter may not be deemed directly appropriate, it's all stuff she said would be likely to come up in a court case. So, by putting all this in our letter now, it's likely to save a lot of the solicitor's time, and XP's money, by giving them as much information and 'our side' as possible. When I look over the summary, it all seems to make sense, that the kids would have a better home, an even more stable life, a better school, still be able to see their friends and family back here regularly, and moving to a place on the ground floor will help my recovery and therefore my ability to get back to doing what I've done for them for the last 13 years. I am resolute now that I AM doing the right thing for everyone, and just hope that XP realises this sooner rather than later.

Oh, and I've worked out that the contact time he's arguing about, and threatening to swap roles about, comes to 10 hours a week term time, equalling 300 hours a year, which equates to 12.5 days a year. As there are approximately 150 school days a year, this leaves 202 non-school days. Half of this is 101, which would mean he'd have 113.5 days - let's say 115 days per year. Allowing 2 days for each of his alternate weekends, of which let's say there are approximately 5 weekends per term, so that's 30 days a year, that leaves 85 for holiday time. That would leave us with 6 days of holiday and him with 81.

Sorry, because there are 91 days in total. Hope that's all clear!

Might he not reasonably argue that he does not have 81 days leave allowance from work, so will have to find childcare for a significant chunk of that holiday time, which he would not have to do with the current evening term time contact? So you are essentially proposing a rearrangement which looks to be equal to the old one in terms of time, but which in effect gives him the children at a time when he can't see them and care for them himself?

possibly, but then he can't reasonably argue that the kids would be better off if he cares for them on his own during term time, & carries on working full time, without relying on his elderly parents for support, as opposed to DH and I who have our own home, and who're both here 3 days a week, and I'm here 24/7 for them, far more than if I were working.

No, I mean I'm not sure you can claim the time you've offered him is equivalent.

What if your dh did a mon to Friday commute so stays mon to Friday near his work and comes back weekends so you don't need to move ?