Would a court do this?

[wildfish]

Hi, I need some advice hopefully reassurance but advice even if not good. Its going to be a ramble at first apologies, but trying to give the facts.

My DS age 4 stays overnight with me, all the time. I work from home so I look after him on a daily basis. His mother my Ex Wife, has since he was 2 been working so she could "build up her career". Then she was hunting for a new man. Now she has sorted those two out, she wants to sort out her son,

During this period she has seen him regularly every morning on the way to work, every evening too. She is supposed to take him in the evenings two weekdays, 3/4 one weekend day and 1/4 the other, but still comes here during "my time" too. I let it, as I don't want him missing out, but its a pain.

DS DOES NOT want to spend the night at her place. He is absolute about that since 2years old. He wants to stay with Dad. Up to now, she has been "busy" so hasn't really pushed it.

However now that she has ticked boxes 1,2,3 she is after 4. She is proposing forcing him to stay at hers. She also wants an arrangement where he will spend I think its 7 days in each house - no contact with other parent. When it came to school, she says he can stay at after school care during her week - even though I can pick him up (school is 10mins at most and my work allow me to do so) - (she doesn't want me getting "more time").

Its reached the point of threatened court action. She says the courts favour the mother and she will win.

Any comments please ? Thanks people

Oh yeah this is Scotland

I am no legal expert, but I'd be surprised if a court didn't award her overnight access. Happens in reverse (when the parent seeking access is the father) all the time. Seven days with no contact is a big leap, though, doubt she'd get that.

It's not true that courts favour the mother btw - if anything they seem to be bending over backwards to the father's rights brigade (i.e. the issues raised by the FFJ mob). Women generally get residence but that's because it's generally women who are the primary carer. Obviously not the case in your family.

Well, I can't speak for Scottish courts, but I wouldn't imagine that they would have any different approach to the English courts, which is that whatever order is made it should be in the best interests of the child.

I would suggest that you keep a diary of exactly when you have your ds, when your ex-wife has him, what extra allowances you make on the agreed timetable, etc. I doubt very much that a court would make an order which effectively means that your son would be cared for by professionals rather than by his own father, who is willing and able to do so.

I think that, at 4, he is probably too young for the courts to take into account his views on staying overnight with his mum, but, in England, if there were such a dispute, they would appoint a CAFCASS officer to do an assessment.

I'm sure that your son being very happy staying with you should work in your favour. Why rock the boat when he is very happy?

I think mediation is suggested first before courts. But you may need to check with Gingerbread or CAB

Good luck.

the courst paramount consideration wil be ds's welfare....that will be the basis for any decision.....
staying contact with any absent parent from this sort of age is likely to be considered, a 50/50 split of his time between you would be likely ro be though more difficult for a child this age.... many think this would be unsettling and that a child needs a clear and secure base....
you and the good care you have provided are the status quo. ex w will have to show it is in his interests to disrupot the status quo to such a big extent as she proposes.
in short i certainly wouldnt be agreeing to this if you dont think it best for your son. if it goes to court (if she applies0 a cafa=cass officer will likely be asked to prepare a report on all the background and make a reccommendation.
have you thought about mediation?

courts don't favour the mother.

they favour the child. what is best for teh child is that a parent collects him from school unless that is not possible. she will undoubtedly get overnight access though this would not be forced staright away.
she will need to build a better relationship with her son first.

you have residency already and this has so far been agreed by both parties. unless you were seen to be unfit i cannot see this changing.

but yes maybe you should get some proper legal adviec if she does intend taking you to court. the process is long, confusing and very draining....do not attempt it without support.

If you're in Glasgow, try the Govan Law Centre or somewhere similar for advice.

Wow, so quick. Mumsnet certainly comes to aid pretty quick. I should say I am not against him having overnight stays with her. But I am not / never going to force him - it would come naturally eventually in my opinion. He really gets distraught. Also add that his nursery have also said he is making progress now - after a year and a half of being isolated, non communicative, "slow" (which started just after the divorce and when she originally tried forcing him to stay with her, before abandoning it after 3 months when he refused and refused). They also said that this is not the time to rock the boat before school starts. She should wait till he settles in at school. She refuses - says what do they know.

I plan on seeing my lawyer that handled the divorce - in fact will speak tomorrow.

On mediation she has booked mediation - she sees them this week first. But she has said if they don't agree she will seek a 2nd opinion then seek court if I don't agree to the 7 days plan.

Basically she is right and the world is wrong - unless it agrees with her.

Until now I thought it she really cared about him, but now it seems it is really just about her or taking final strike against me. DS seems just a pawn in a game. Sorry it just seems that way to me.

Sadly courts do insist that parents 'just force' reluctant children into contact visits - do a search here and you'll find plenty of people agonising over it. Hopefully mediation might help you and your ex resolve this before it gets to that stage. Or the courts might be more supportive towards you - the underlying assumption seems to be that mothers obstruct contact, maybe they will be more sympathetic towards a father with residence.

You know what really gets me is the statement that during "her week" she will decide how DS gets dealt with after school. e.g. After school care is up to her and none of my business. Despite his Grandparents being there, me being able to pick him up. She simply wants no "extra" time being given if its her week.

I still can't take it in!! Am I being silly about it?

not silly at all.
I cannot see the court agreeing to her placing him in after school care simply to prevent you having "extra" access to him.

Also if mediation does not work because she is not co operating the reports will be given to court and they will go against her as they will show she is being obstructive.

only read op so apologies if this has been said already.

can you not explain to her that you are happy for her to have him overnight but it makes sense that you collect him from school and she collects him from your house as you can do it and she can't. say i am not against him staying overnight but he is young and the issue can't be forced. if we force it then it might turn him against the idea forever. why don't you spend more time with him in the daytime wherever possible and hopefully over time he will come to want to stay overnight. would you not rather he got there of his own accord than being forced to do something he's not comfortable with? the problem with this is you may have to compromise on sharing "your time" with her so they can build their relationship up.

sounds an awful situation to be in wildfish. no advicce, but i hope you all work it out for your ds's sake.

xx

re: nappyaddict:

Actually thats what I say to her. I actually bend over backwards to accommodate her. And its been working in that DS spends more and more time with her. But now she wants it accelerated. her words it happens now.

This is a sample of her actions to date. We personally agreed Saturday 9am to 11:30am, with Sunday her main day. She said too early she needed to sleep in after a weeks work. So it was 10-1pm. She has never ever turned up at 10. She has even turned up at 12:30 saying she had to clean the house, she was on the phone, she was tired, ... it goes on and on. But I accommodate as much as possible. She once said so what if she was late, since I am always around with nowhere to go!! Truly a dedicated parent .

btw thanks to all -- I hate these things they consume my mind, and I have a pretty heavy work week too, yet am going to be up, thinking and thinking!!!!!

tell her even if she gets courts involved it isn't going to happen instantly. in fact it would probably be quicker if she went along with it and waited for her and ds to have a better bond so he asks to stay overnight.

That's a very good point.

Recently had dealing with court and CAFCASS had heard not always come up with reliable findings but went along with it. Boy was I surprised when I read what they thought it was like they were talking about a totally different person. If I were you I would try to avoid this as the court takes a lot of what they say into account and may not work in your favour. Similar to you other party not reliable hardly ever there for him but still shown favourably in the report. Have not given up and still fighting it Good Luck

Message withdrawn

Good post alittleone...
As littleone with the family courts status quo is very important, they generally like to stick with routine the child is used to. Any changes in the childs routine are mostly introduced slowly.
Your ex has proposed mediation. Often its a box ticking exercise ie the courts like people to try mediation first and so her solicitor will have advised her she needs to at least be seen to have given it a try. Sure give it a go but dont expect to much, her attitude as you have described suggests she now wants control over your DS.

Hope for the best, but prepare for the worst ie do try to negotiate and do the mediation on the nothing ventured nothing gained rule but in the meantime do all the homework should they not work out.

Another point, do not trust solicitors, they are there to serve themselves mostly. Look into going litigant in person with a McKenzie friend you would most likely get a better result and if you dont get legal aid, save thousands.

Oh and as littleone said keep details in a diary of all conversations, all contact etc.
That evidence will be essential when you go to court.

Consider joining FNF-Families Need Fathers (not to be confused with Fathers For Justice spit )
FNF are a charity that have been working to promote children having a significant relationship with BOTH parents post separation since 1972. They have a wealth of literature, expertise and experience to share.

My friend had issues like this and taped conversations with the ex (where ex was being, basically insane) in case they had to go to court, they did and the tapes showed the ex as unreasonable and controlling and ordered for psychiatry by the judge!
Also, can you son articulate exactly why he won't stay with his mum?
If he is seeing any kind of therapist they can put in a report that currently a routine change would affect the boy adversely. This would help.

Miggsie: I wish I had the brains to keep noting conversations and times etc. But after a while it get repetitive - "late again" "too busy" - and I stop keeping notes! Anyone who has heard what she says would agree with that judge.

DS simply "wants to stay with dad". If pressed on why, he will simply go quiet, or try and come up with reasons, different each time.

Personally I suspect its security - He's been biased since a baby towards dad. Since a baby when he could start to express his want for dad to feed him, dad to do x,y,z. So its been like this before the divorce/separation. Reason -- no idea.

ElanorRigby: I generally don't trust solicitors. One of the early ones I went to it was so obvious it was about big fees. The one I am with was good during the divorce, so I am giving her another try for this. But you're right I better be prepared. Will take a look at FNF.

Alittleone: I have said I will help her -- but only after school starts and he settles. I don't want to disrupt his security now, when he is gaining back what he should be at 4ish. The nursery back my opinion in this. But she wants it now. That's what we are fighting about when !!!

Jackdoll: I am scared of that - she is a very good at turning on the waterworks and misrepresenting the facts (being polite). You have to meet her a few times before realising that maybe its not as she paints.

Thanks again all