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Original poster

Divorce and residency/custody of children

26 replies

Kbear · 28/03/2012 18:21

I am pondering a friend's situation. In a nutshell, can her ex-H stop her moving 30 miles away with the children? She is in a new relationship and wants to move and the children will need to change schools. Can the ex-H stop this/get residency himself, in court?

I always assumed the mother, unless she is a danger to the children, would automatically get residency?

Any views?

OP posts:
smartiesrule · 28/03/2012 18:31

He cannot stop her unless she moves over the England/ Scotland border. Basically, she can live anywhere she choses in mainland England and wales.

smartiesrule · 28/03/2012 18:32

Unless she doesn't live in England/Wales. If she doesn't then I have no idea.

Original poster
Kbear · 28/03/2012 18:34

really? so he's wasting his time taking it to court?

OP posts:
smartiesrule · 28/03/2012 18:35

Yes. I moved 300 miles away from my XH and he could do absolutely NOTHING about it!

smartiesrule · 28/03/2012 18:37

It won't get to court. He cannot stop her moving.

Original poster
Kbear · 28/03/2012 18:38

friend can't sleep - court is soon, I was sure that there was nothing he could do, he will still have regular contact of course, but he has convinced her and the children that they will be able to stay with him all the time and she will have to apply for contact arrangements.

Thanks so much for your replies

OP posts:
Original poster
Kbear · 28/03/2012 18:38

going to court next week in fact

OP posts:
smartiesrule · 28/03/2012 18:42

Oh, that's rediculous. I went through all that with my solicitor. When the ex was told he couldn't stop me he gave up. He can make it difficult and it may drag on but he really can't stop her moving.

Original poster
Kbear · 28/03/2012 18:42

buy why hasn't the solicitor told him he doesn't have a hope in hell then?

OP posts:
balia · 28/03/2012 18:43

This is news to me. Clearly whilst he can't stop HER moving, he could ask for a Prohibited Steps Order to prevent her moving with the children, and what is stopping him applying to have them Resident with him and avoiding the upheaval of the move?

As it is only 30 miles I'd imagine the court would let her move them, as even though moving schools would be a big deal, I'm assuming there wouldn't be that much of a change to the level of contact, but I wouldn't want anyone to read the thread and think someone could move children away from their other parent and there was no legal redress at all.

balia · 28/03/2012 18:45

Sorry, x-posted.

If your friend has some reasonable suggestions about how she can maintain the current level of contact (and assuming the children want to go with her and new stepdad) she shouldn't have any problems.

Original poster
Kbear · 28/03/2012 18:46

so perhaps that is what he has done Balia? I don't know the fine details, I just know my friend is worried that she will lose residency and not be able to move in with her new partner. Ex-H has a new partner who apparently is down to be the child carer of his children whilst he is a work....

OP posts:
OptimisticPessimist · 28/03/2012 18:46

He can apply for a Prohibited Steps order I believe, which (if he was successful in his application) would legally prevent the children moving or changing school (depending on what he applies for). He can't stop HER moving, but he can be granted an order preventing her from taking the children with her. She needs to take legal advice, most solicitors will do your first appointment for free.

Original poster
Kbear · 28/03/2012 18:47

The children were happy to go until the dad told them all the pitfalls of changing schools...

OP posts:
OptimisticPessimist · 28/03/2012 18:48

A, x-post with balia. I was also concerned about people reading the thread being misinformed :)

Original poster
Kbear · 28/03/2012 18:49

So he can stop her moving, she won't leave without the children will she?

It's a shame he's allowed to be with his new partner and effectively she isn't. The contact would be very similar to how it is now, he's an hour away.

I think he's doing this to be spiteful. I'm sad for my friend.

Thanks for your advice ladies.

OP posts:
NatashaBee · 28/03/2012 18:52

This reply has been deleted

Message withdrawn at poster's request.

Huansagain · 28/03/2012 18:52

Why doesn't her boyfriend move the 30 miles nearer to your friend?

Waxtart · 28/03/2012 19:08

He can definitely apply for a prohibitive steps order. Whether he'd get it or not would depend on the circumstances. He would have to show that it wasn't in the childrens' best interests to move and change schools, and she'd have to argue that it was. It's about them and not about whether she wants to move.

Without all the details it's hard to comment, but if he's currently having lots of contact and able to go to school events/activities etc then he will have a very different relationship with them if they move 30 miles away, and I can see why he'd try to keep them close to him.

On the other hand he could just be flexing his muscle and trying to stop her getting on with her life. Do you know how much contact he has at the moment and how involved he is?

Original poster
Kbear · 28/03/2012 19:10

Because he has a house and she doesn't, basically, and her new life is here, I suppose.

It is more complex that I first thought, perhaps if she outlines the proposals for contact and the judge realises that the children will be looked after by their father's girlfriend, rather than him, she will get permission. He works shifts and will not be there for certain days/nights so they will be there with his girlfriend while he is at work.

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Waxtart · 28/03/2012 19:15

Does she work?

balia · 28/03/2012 19:27

I think it is easy to claim 'spite'; I'm sure there are friends of Dad telling him that she is moving out of 'spite'. I don't think you necessarily have to be spiteful not to want your children moving further away.

How old are the children?

Original poster
Kbear · 28/03/2012 19:43

Thanks for your replies everyone.

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NotaDisneyMum · 28/03/2012 19:46

Is it the first hearing ?

If so, it's unlikely a decision will be made - there may be a temporary order preventing the DCs being moved until residency is agreed, though.

I imagine that the court will expect your friend to try mediation if she hasn't already?

I wouldn't rely too heavily on the fact that the DCs dad won't be there all the time and his girlfriend will be caring for the DCs - ime, magistrates don't really take that into account unless it's an issue for CAFCASS - and if course, if he has residency, he can request 'family friendly' hours from his employer.

Residency is no longer automatically granted to mum - many courts start from an assumption of joint residency - that doesn't mean that the DCs have to spend half their time with each parent, but that both parents are equally capable of caring for the day to day needs of the DCs and both parents should play a role in their daily routines.

Original poster
Kbear · 28/03/2012 20:45

interesting, thanks

I appreciate your responses

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