Residence

[Mimiso]

Hi All

I could use some help. I split up with my ex in 2000 when our DS was 2. We were married and agreed that he would live with me and go to his dads at weekends and holidays. this worked very well but from about 2005 he stopped getting him over the weekends and only took him on some holidays which again was fine as he lives about 200 miles away from us

Things have been working amicably until around June last year when I asked him for more maintenance, he was reluctant to do this and I informed him that I had been on the CSA website and calcuated that he should be giving me at least £100 more. He went in a rage and started telling me off so I just calmly informed him that I would be in touch with the CSA. To cut a long story short I reported him and as of August started to get the extra maintenance from them.

He then called me in October saying that he was now applying for secondary schools for my son who is due to start Y7 this year as he was now taking him and there was nothing I could do about it. I then informed him that our son was happy with me and there was no indication that I was being negligent, I am a good mum. He was riled because of the CSA. prior to that he had even said to me what a good job I was doing bringing him up. Naturally my son is very worried about this, yesterday he was telling me that each time he goes to his dad's now he is nervous that he wont bring him back to me, more so now that he is due to start Y7 in September.

His dad does not call him at all or show any interest in his well being. He was last at his dads over Christmas and since that time no phone call or contact, although I'm sure that over Easter he will go them. Prior to the phone call about schools, my ex had no idea which school our ds went, he showed no interest at all. My son is therefore not used to his dad and on one ocassion when he was there he was bullied by one of his dad's partners children and my son was too scared to tell him and phoned me himself. My son has told me that he does not want to live with his dad

He clearly loves his son but I dont feel that uprooting my DS from an environment he has been used to for the past 11 years of his life is in his best interests. Furthermore he has two siblings in our household who would also be distraught. I am not willing to go down the court route as that will anger him even more but am stuck and highly stressed that over the summer holiday he could just say he is not bringing him back and I would be at a loss. Can he just do this and enrol our ds in a school without my consent just because he has PR. What would be rights here as I am worried that if I refuse contact over summer he could have me on that as being unreasonable. I am really worried about this. He said the reason he wants our ds to move to him is because there are no good schools where we live, surely this is a widespread problem in England and why should I be penalised because I cant afford to move somewhere nicer?

If you've read so far, thank you so much just for reading. Any assistance would be useful

Hi there

Gosh poor you! The simple answer is that there is nothing preventing him from returning your son after contact. Because the threat has been made you should consider applying to the court for a residence order which is an order that the child always be returned to you after contact.

Best regards

Harjit

Yes you need to get legal advice, unfortunately you may struggle to get residency until he actually does something wrong but def ring around and find a family law solicitor that will give you an initial consultation free of charge.

I wonder whether you would consider refusing to let your son go for contact and push your ex into having to go to court for contact and get awarded residency that way. You get refuse contact initially on grounds that you feel there is a threat of your ds bot being returned and your ds wants to remain with you?

A residence order can be granted where there is real threat not to return.

Best regards

You have PR too. That means he can't enrol your DS at a school without your consent. His PR also means you can't enrol your DS at a school without his consent. If there is a dispute on this I'm afraid you may well end up going to court. In most such disputes, the courts will favour the parent who the child normally lives with, so you ought to win that one.

As for residence, you can get a residence order now. That should be no problem given that your DS lives with you and wants to stay with you - his view is not decisive but he is old enough to mean the court will take his view into account. The courts prefer not to make orders if they don't have to but if you can show that you and your ex cannot agree as to where your DS will live you should be able to get an order.

Another thing you can consider is a Prohibited Steps Order. That means exactly what it says on the tin - he can't take the "prohibited steps" without your permission. This will probably be quicker than a residence order. You could prohibit your ex from enrolling your child in any school in his area, for example.

I know you don't want to go to court but you may have no option if he intends to carry out his threats. The first step would be to see a solicitor and get a solicitor's letter sent to your ex telling him a few home truths. As far as I can see your ex hasn't got a leg to stand on so a shot across the bows may be enough to make him back down.

Thank you all so much, you have made things much clearer for me. I will call him today and find out what his intentions are and if in fact he is still threatening me with not bringing my son back then I will certainly get a solicitor to initiate the stages of a prohibited steps order. I will also seriously think about whether DS should go there over Easter until this issue is resolved and make it clear that the only reason I am refusing contact is the threat he made that he would keep him there for schooling. I am pleased to hear that I can also refuse consent for him to enrol my DS in a school where he lives and I intend to do just that.

In addition his partner has a son from a previous relationship; and my ex told me that he wasnt very keen on having my DS over at theirs regularly because he deemed his partner's son to be a very bad influence. So i challenged him on this and he first denied it then went on to say oh things might change by that time. So I am sorry I cant even consider having my son live in such an environmnent. I am so stressed about this especially also because we didnt get the school we wanted and feel that he might use that against me.

Once again thank you so much Mners.

Just in case you haven't made the call yet - consider writing to him instead. That gives you the opportunity to present your thoughts in an ordered way, without being interrupted, and your words and intentions can't be misrepresented (say later at court) Keep a copy of the letter, obviously.

I don't think you have anything to worry about - to win Residence, your ex would now have to prove not only that his home was the better one for your son, but that it was so advantageous as to outweigh the trauma of moving him from everything he knows and loves.

Thanks Tanga, very good advice indeed. WIll certainly do that as he has history of deliberately misinterpreting things to suit him. At least if I write it down and highlight my concerns he will have to reply or seriously think about getting a solicitor involved.

I am contemplating not letting my son go to his anymore until this has been resolved as I have heard that if he refuses to bring my DS back there wouldnt be much I would be able to do as he has PR and I am confident he is aware of that. Was also thinking of calling admissions in the borough he lives in to find out what school DS was offered and to let them know that I would not be consenting to my DS being enrolled in any school in their area. Can I do that? thank you all

Just so you know and can reassure your son. If the Father fails to return your son it's possible to apply to court for an emergency hearing the same day for a specific issue or prohibited steps order, interim residence and, if necessary, a recovery order.

When a solicitor cannot be found to act quickly it is a case of going to court, filling in Form C100, insisting on an ex-parte hearing that day and paying the court fee. You then need to be prepared to hang about all day and have about 5 minutes to persuade the judge urgent action is required to prevent a change in the status quo and a new one being established.

prh47bridge and STDIW and anyone else, please can you advise me on the following. I rang up the borough my EXH lives in to find out which schools he had enrolled my DS in and it seems he started the form in but didnt finish so he didnt choose any schools or submit the form. I am not sure how to interpret this. He sent me a text on Friday, after virtually no contact with his DS or myself to ask about DS's welfare since January, no calls nothing, to say that he was picking him up on Saturday (yesterday). Naturally I was livid, he should at least give me notice of his intentions to take DS and not expect me to be sitting around waiting for him in case he chooses to pick him up or not.

The special arrangements for children form highlighted that he would have him weekends an holidays and he never bothers to pick him up on weekends but just chooses to assume that every holiday he must be at their place. My point is when we have DS we will be going to school etc, during the holiday we also expect to spend some time with him and if his dad picked him up every other weekend or example there wouldnt be this urgency and need to have him the whole of the holiday.

What is the courts stance on formalised contact. Is it unreasonable to request that he give me two weeks notice of intention to pick DS up and also that the holiday is split between his and ours i.e. if it is a weeks holiday, four nights at his and four nights at home. My DS has expressed that half the time he is at his dads he feels like a fish of water as he has nothing in common with his dad and that sometimes he doesnt feel like going. He also expressed that he wouldnt feel this way if his dad bothered to at least call him at all. Can my DS refuse to go to his dads or will that be perceived as if I am influencing him not to go. My DS is 12 this year

I have no issue with him going there but I am fed up of EXH thinking he can do whatever he likes like come and pick him up when he feel like it and not even tell me when he is bringing him back. I must dance to his tune each time. I have been very reasonabl with him so far but I have decided to play him at his own game and ensure that all contact is formalised. Do you reckon its a good idea to write to him first with the proposal or to just ask a solicitor to write it all out and seek for a Contact Order if that is possible. There is still also the issue of the threat of keeping him and not bringing him home. I am so confused and dont know what is the best move bearing in mind what is best for my son.

Thank you for reading

sorry for all the typos, my keyboard is playing up. I just wanted to add that this Easter I have booked DS in for extra lessons for his SATS in May so he will not be able to go anyway and I anticipate a lot of grief from him over this but while he is not concerned about ANYTHING at all about his son, I am. He thinks that parenting is picking him up once every three months for a week. So annoying

Good contact for children relies on parents working together and going to court tends to end that for good. Mediation or negotiating through an independent third party (solicitor) is always worth trying to resolve disputes in the first instance. In fact courts normally expect parents to try to come to agreements between themselves if at all possible (see www.judiciary.gov.uk/publications_media/media_releases/2009/0309.htm) Court application forms ask if mediation has been attempted and if not, why.

There isn't one contact arrangement that suits all families and once every three months for a week can work fine although it isn't reasonable to give short notice. Courts recognise children need to share quality time at weekends and during the holidays with both parents. It is the quality of relationships rather than quantity that is important. Maintaining relationships with both parents gives children a sense of who they are and confidence of their own self worth which helps them develop their own healthy relationships in adulthood.

Children's views are considered according to their age and understanding although it's still adults who make the decisions. It's important to understand the rational behind the views of a child. The first question is whether the child is expressing a genuine preference or they are mirroring the preference of one of the parents as a result of direct pressure or threats or a desire to please. In dysfunctional relationships, preferences may reflect the child?s alignment with the parent they most fear, or the parent they regard as the most unstable.

The second question is whether a child?s stated preference is a result of factors which are clearly not in their best interests. Younger children may lack the developmental capacity to understand what life would really be like if their preferences became reality. A child may state a preference impulsively or for reasons which are not in their best interests. For example, an adolescent boy may state that he wants to live with his father. Upon closer examination, the evaluator finds out that the real reason for his preference is that the father provides no structure or discipline, lets him drink, stay out all night and so forth.

Another problem with giving great weight to children?s preferences is that it may weaken parents' authority over the child, if the kids believe that they can control their parents by threatening.

The above are not reasons why children shouldn't be consulted or their feeling and concerns listened to carefully. However, it should be done sensibly with their best interests in mind and children should not be made to feel that they are porns in a battle between two parents.

Falls off soapbox.

Having said that sometimes a contact order is necessary to regulate contact so everyone knows where they stand and there is no reason why a parent with the majority of care cannot apply for an order. Since December 2008 a contact order automatically has a warning notice attached and the order and notice is served on both parties. Court orders are made for the benefit of children and if there is evidence of threats not to return your son are serious and your son is worried you may well have grounds to apply for a residence order. A solicitor in possession of all the facts is in the best position to advise.

I agree with STIDW that getting formal is the last resort and should be avoided if at all possible.

The court is required to consider your son's wishes when setting up a contact order. That doesn't mean his views are decisive but they would certainly be taken into account. If CAFCASS get involved it may be that his views as reported by CAFCASS are considered rather than his actual views.

Once a contact order is in place it will apply until your son reaches 16, although you can apply for the order to be changed if necessary. Indeed, as your son is 12, he may be able to apply for a variation to any contact order himself. If your son simply refuses contact once an order is in place his father can take you to court for failing to comply with the order. You should therefore inform the father in writing as soon as possible if this happens and consider going back to court and asking for a variation to the order. If you get into this situation you MUST get legal advice.

It isn't unreasonable to ask for holidays to be split as you suggest but, depending on the circumstances, the court may prefer to order alternate holidays.

Once contact has been ordered, the father will be expected to let you know in good time if he is not taking your son for one of the ordered contact sessions. If he repeatedly fails to do so, you could apply for a variation to the order using his repeated failure to take up contact without notice as evidence.

I would recommend consulting a solicitor with experience of family law.

STIDW and prh47bridge, thank you so much for taking your time to respond so clearly to my question. I cannot express enough how grateful I am. I clearly do not wish to take an gladiatorial approach, so will first consult with solicitors and get them to come up with a proposal for contact. If that doesnt work out then we will have to involve the courts.

Thank you for your comments on the reasons why a child might prefer a parent etc. It makes a lot of sense and I would prefer not to get him to choose sides as that is unhealthy for him emotionally.

I have just been so stressed out about it all and not consulted a solicitor as I hoped things would settle down but that is clearly not the case. I hadnt thought about alternating holidays so that is something I will bring up with the solicitor as I feel that we do miss out on holiday time with him and if his dad was so desperate to see him he could always come on the weekends. I will also enquire into a residence order.

once again, thank you

Good luck mimi, all the best to you and your son. dad seems to be acting very unreasonably and appears to put his own controlling needs above that of his child. He may have praised you previouisly in the past for being a good mum, I bet he will do the opposite if it goes to court, but dont let that put you off, the courts take favourably to consistency and dad doesn,t seem to have got his head around the fact that he must remain consistent or the child will become confused.

At this stage I would get a solicitor to write to him firstly, to clarify contact and arrangements for notice and secondly to confirm that he will be returned after contact.

Thanks Piepie and Sassa...

Hi

It depends on your relationship with him. What you are asking for is not unreasonable, it's just how best to achieve it. If you feel that a solicitor's letter will help, go for it otherwise try and sort it our amicably.

Best regards

Update re contact:

I sent EXH a text saying that it would be great if he could give two weeks notice of intention to pick DS up and the reply was that 'he would not be told what to do' and in fact I should be giving him notice?????? I am completely baffled, how can I give him notice of his intention to pick up when DS resides with me. It is time to get solicitors involved as I am clearly not going anywhere trying to reason with him. My EXH scares me tbh, he is one of those sly conniving types where you never know whats next and when you try to reason with him he doesnt want to know then when I get heavy handed he blames me. aaarrrgghhh

Thanks Karma and Sassa, need all the luck in the world.........

I think initially I would join families need fathers (they are for both mums and dads) and ask them for their advice they have lots of experience of helping each other through this kind of problem.

I would only communicate with your ex by recorded letters so there is evidence of what he is saying. I would also try and get a recommendation for a very good family solicitor local to you - FNF may be the place for that.