No residence order - do I get to call the shots?

[Noregrets78]

I'm a bit all over the place, and in need of some advice. In short - DD (9) spends 4 nights a week with me, 3 nights a week with XH. There is no residence order / contact order in place, although I'm regarded as main carer for child benefit etc.

I've had a few concerns about the time she spends with him. Mostly getting her to keep secrets, telling her every detail of our financial settlement negotiations. But all came to a head recently when she phoned me as she couldn't wake him up (drank too much). She was terrified she'd get in trouble with him - in reality she didn't but was made to promise never to do it again, as mummy would speak to the judge, and they'd never be able to see each other again.

Cut a long story short - I've confided in someone who quite rightly told me I needed to contact children's services, and has also made a referral themselves. Children's services saw it as 'advice only' on the basis they can't make decisions on contact - it's for those with parental responsibility to sort out. They did hint that they thought it was inappropriate for her to stay overnight until resolved, and basically I needed to step up (not their words) and tell him that. That I didn't need to hand her over for contact if I wasn't comfortable.

but... I already know what his reaction will be. He'll say that it doesn't matter what I think. That he has as much right as I do. He'll say no - she's staying overnight (she's already with him at the moment).

...and then I don't think I'll be able to do a thing! I could call the police but they'd just check that she was OK (which she probably will be).

Do I have the right to dictate, when we both have parental responsibility, and there's no residency order? Is there anything I can do? I'm aware that I need to try to take charge somehow, otherwise it looks like I'm not protecting my daughter.

I had a not dissimilar situation. My solicitor advised me that under the children's act I needed to raise my concerns with him if he continued to act in the same way I should stop contact.
I would strongly advise that you get your own legal advice as fast as possible so that you have the correct support and advice should you need to take things further.

No - he has an identical legal status as you. neither of you `have the right to dictate'. You are both resident parents, simple as that. You should work on that principle.

If you have problems and need to resolve them go to mediation. Would seriously suggest you don't go down the legal route unless you want a bad situation to get much worse.

lonecat definitely my next step will be to raise my concerns with him. I can try to stop overnight contact, but already know that he won't agree. Did you manage to resolve through negotiation only? I will also speak to a solicitor.

lostdad presumably we each also have the legal right to protect our child? If he was concerned with the way I was looking after her, I'd expect him to do something about it. That's what I'm trying to do.

If I don't do anything I can be deemed not to be protecting DD, as social services have already told me.

He has refused mediation and has deemed it provocative that I even suggested it.

I guess my overall question is - If I say I'm not happy with overnight contact until the issues are resolved (day time contact still fine), and he refuses... what are my options? Presumably the legal route is the only one left? Presumably I would need to start with a residence order?

The advice I received was that under The Children's Act both myself and ExH had a duty of care to DD. If I failed to raise a serious concern in a timely manner I would be just as culprable if something happened.
So I wrote the following:
Dear Ex
I am writing to you in the spirit of co-parenting to raise a concern in your care of DD and would hope that if you had similar concerns you would raise them with me.
My concern is this that on the Y of Y you did drive DD to my home whilst under the influence of excessive alcohol. I appreciate that you may have not drunk that morning, but there was a clear smell of alcohol on your breath. I would ask that in future you do not convey DD in a car if you have consume more than one 125ml glass of wine or if you have been drinking past midnight the night before. If it comes to my attention that you have broken these terms I will take further action to protect DD's welfare under The Children's Act.
Yours lonecat

I got a sheepish reply saying he agreed to my terms, but wasn't aware he had done this recently!

I have to say all of this was in the context of a whole lot of other stuff and I also had additional evidence from other witnesses of him drinking and driving with DD in the car had I needed it.
He had already refused to attend mediation over several other issues so that was never going to be a successful route. It has not happened since and it appears to have been the 'wake up and smell the coffee' moment for him.
I do think my approach does need for your Ex to believe that you have the courage of your convictions to follow through.

I must emphasise that this was carried out having had extensive discussions with my legal team about my specific situation and was the culmination of raising other slightly less serious concerns in a less formal manner unsuccessfully. I should also say that all my concerns were considered serious by both my legal team and by a mediator when I attended the first session alone before he refused to attend. However, as drink driving is illegal it gave more weight to this than other matters.
We do now have a civilised relationship and since he improved his behaviour I have not held this over him in any way.

I would consult a solicitor with regard to putting measures in place to ensure the arrangements for your daughter are safe. Parental Responsibility gives parents equal responsibility and rights to carry out those responsibilities, but that includes the duty to protect a child from harm or the risk of harm.

lonecat that's really interesting thanks for sharing. My XH sadly won't 'take it on the chin' like yours does - he's very controlling and abusive, and will not accept criticism or interference.

STIDW Eventually I can see that the legal route will be the only one which gets me anywhere. In terms of putting measures in place, what kind of measures do you mean? I'm only aware of residence orders and contact orders, and presumably couldn't do a thing until I have a residence order?

Depending on the circumstances you may be able to negotiate an agreement through your solicitor. Failing that court applications can be made for an order to regulate Parental Responsibility. As well as Contact and Residence Orders there are interim Residence Orders that can be put in place quickly whilst matters are investigated; Prohibited Steps Orders preventing someone from doing something such as taking a child from school; conditions or directions which can be attached to an order e.g. to attend mediation or parenting classes, alcohol testing; supervised contact or contact in a contact centre.

"when she phoned me as she couldn't wake him up (drank too much). "
in that circumstance you need to be driving round to pick her up when she calls. and log it/record date time etc. can she get out of the house easily if she with him or is there special key to get out? it's a risk fo fire safety too if she cannot exit the house when he is there and drunk.

also make sure she knows how to dial 999.
if she cant wake him up she should call 999. if it is recorded as drunken sleep it will still be recorded - then he might realise he has a problem....

Thanks for all the comments. Had a very good talk to XH where I set out all the issues. He didn't agree straightaway (I would have been suspicious if he did!) but did see my point of view by the end of it, and was actually pretty upset. He's agreed to what needs to change, so I'll need to just see how it goes.

But this has been a real wake up call for me - it's not just a case of 'when she's with him, it's up to him to sort out'. I need to be comfortable with the way he's looking after her, otherwise I'm considered just as bad. An important lesson!

cestlavie yes she's able to get out easily, and knows how to call 999.

He has also now told her that she did nothing wrong, and should never be worried about calling me.