Brother trying to get residence order

[BanquoGhost]

(Copied over from Legals board)

Hi

I'm writing about my brother who is trying to get a residence order for his 3 yo son. Bro left his relationship due to a physically, emotional and verbal abusive partner. He has taken his son to safety whilst all the legals get sorted out. Brother has been the full-time main carer as his ex went back to work in a shift job which also meant brother had to drive her (and his son) here, there and everywhere at ridiculous hours. The ex has lost custody of another son by previous relationship due to being violent towards the kid. The guy that got custody was an ex-junkie, amputee, HIV+ etc which says alot about the mother.

The mother is fighting for full residency and my brother is seriously worried for his wee boy's future as he wont have much of a future with his mother.

Brother is now talking about changing his lawyer as he feels she isnt very interested and advises that the mother has a 'strong' case??? Is this advisable.

Whilst this is a mums board (I dont have children), if the mother has displayed violence - should she have residency rights or is the general welfare and upbringing of the child more important. My brother was away for a week - all she did with the child was take him to the supermarket and watch television. Whereas my brother takes him to playgroup, mother and toddler, swimming, parks, sunday school - he has a far better chance of a decent life with my brother.

I have written a letter of support for my brother as I offered sanctuary in my flat for a few weeks until he was re-housed. His ex, I am convinced, has mental health problems but undiagnosed due to the constant bombardment of texts, phone calls (we are talking up to 200 a day) but the solicitor says that she has never been violent to her son (yet! She's been violent to the other one)

I'm not sure what I am posting for, advice, encouragement etc I would be interested to hear from mums if the safety of the child is paramount or should all mums deserve to keep their children even if they know they are violent. For the record, the Police and Domestic Violence unit have all been to assist my brother (black eyes etc) from his partner. Also, we live in Scotland.

Thanks for reading.

BG

all he can do is keep good records, keep all the texts (do not respond to them) and put together a strong case, documenting her agression towards him and volatile behaviour.

sending mad text msgs shows volatile behviour but is not proof of mental illness nor is it proof of being a bad mother. (i have been on receiving end of same and have gone thru court system - ex got sueprvised contact centre which has now progresssed over time to outside contact centre). generally dcs happy to be with him - while he continues to try and harass eg text msgs.

he should also propose a regular schedule of contact to show he not denying contact eg propose supervised contact at a contact centre on regular basis.

the "going to supermarket and watching TV" versus "park and swimming" is not in itself a strong argument. parenting styles are different....

be careful what you say

"The guy that got custody was an ex-junkie, amputee, HIV+ etc which says alot about the mother.
"

while ex-junkie might raise queries, eg is he really ex-junkie

being an amputee is no argument against being a parent,

nor is being HIV+.

also if the person has really taken steps to be ex-junkie then might be seen favorably -

i know what you saying but you cannot tar all amputee parents as rubbish, nor all ex-junkie or HIV+ parents. depends on individual circumstances.

The best advice I can give is that your brother get in touch with Families Need Fathers. They're a good bunch.

C'estlavielife

I am not tarring amputee parents as rubbish. My brother and I both have disabilites (the same one). I was merely trying to state that although the law favours the mother, in this case, it clearly didnt. That guy has become a brilliant ally to my brother. His son ended up winning a bursary to a top independent school so it says so much more about him than the lack of encouragement from the mother.

My brother is very keen that his son has contact with his mother, but for his long term development, he is better with his dad. He has tried meeting with her but every time there is a major manipulation battle going on so brother is trying to get supervised visits only just now.

I agree with Snorbs. Families need fathers are very good.

It's probably not much help but my BIL has full custody of his daughter. Mother walked away from them both. Then a little while down the line decided she wanted her back. The courts saw that my niece was happy with Dad and awarded full custody to him. Mum has supervised contact (when she turns up). There were other issues with Mum, I'm not going to go into on here, but hopefully your brother will get a good Judge who will think of the child's best interests.

Just a vote of confidence really to say that the courts don't always go along with Mum.

i was reading quickly - i read something into your statement about the other father. it wasnt clear. is clearer now!! it is good this guy is ally to your brother.

i think if there is enough evidence regarding the mother's behaviour/inconsistency etc regarding teh child, then your BIL has strong case.

brother sorri not BIL

im in the current situation as your brother with my exp, he was violent abusive a very nasty manipulative person.

He has treated me and dcs very bad which has resulted in him having supervised visits at contact centre fortnightly, a non-molestation order against him and now me applying for residence order.

The courts will not go upon tic for tat i.e she takes them to supermarket and watch television brother takes them to parent/toddler group, park etc
although it sounds like your brother could give them a better and more stable life without violence etc. The courts will only go by the welfare of the child. If this mother is violent etc. Your brother needs to gather evidence text messages, recorded phone calls, diary of events, how child reacts to seeing mother happy, sad, nervous, scared. police records, not only that your brother has to prove that he has taken vital measurements already to protect this child from violence like a injunction to stop text messages, a contact centre for supervised visits. the courts will address what drastic measures has already been taken consideration in that which will help his case.
A residence order whom decides who child should live with, A court can also order a joint residence order, which is an order to say that the child shall spend time living with both parents. The mother could say she would like it jointly More evidence your brother can gather the better, without evidence the mother has a good chance for joint residence. good luck

Has Social Services been involved Banquo? I only ask because if your brother's partner's first child was removed from her care then when her second child was born they should have been involved from the outset to ensure that the new baby was safe in the mother's care.

If your brother's child has or has had a social worker, then they would be the first port of call for your brother - he should check to see if they would support his bid for residence. A letter from social services would help immensely in any application for residence.

If they haven't for whatever reason been involved then your brother should take care before calling them. Unless he is squeaky clean himself, he could be inviting some pretty serious scrutiny into his life - what he doesn't want is for social services to feel the child is at risk to the point of having to start care proceedings which would take the entire matter out of your brother's hands altogether.

The first thing your brother should do is work out whether he is happy with his solicitor - she may have good reasons for saying Mum has a strong case. He should listen to those reasons and challenge her advice only if he thinks she has the basic facts of his case wrong.

If your brother is really the primary carer (and he should be able to get evidence from the health visitor or pre-school to that effect) then it is most likely that the Court would uphold the status quo - that is, keep things as they are unless there is a significant welfare issue to warrant a change in the resident parent i.e. your sister is a better bet than your brother.

I'm not sure about the Scottish system but can't see that the principles would differ significantly from the English one. It sounds like a complicated case so your brother might be in for a long battle. It's nice that he has you to support him and hopefully he'll get the result that's best for his child.

to expose a child to domestic abuse is emotional abuse

Hi everyone

Just back in after the holiday weekend. Thanks for all your comments. I have passed them onto my brother which I hope he takes on board. He has been in touch with Families Need Fathers and is planning on going to their next meeting. He is scouting for a new solicitor, maybe FNF will point him in the right direction of a good one.

There was an article in this Sunday's Scotland on Sunday supplement about male domestic violence and it is rather shocking to read about those men who have been beaten up by their partners. There's no prizes for guessing that it's the men that get marched down to the police station and loses contact with their children as a result of the mother's violence (some were in professional jobs such as teaching). It really does shock me and in a way it's preparing me for the fact I may not see my nephew again which breaks my heart as his mother is the most devious, manipulative person you can imagine.

At the moment, my brother is in temporary accommodation by the council. It's not great, but he's trying his hardest to make it a home. He doesnt get income support just now as the child benefit is in the mother's name and she's not paying him anything but she wants him to pay the bills. Until the whole sorry mess is sorted out, he hardly has a penny to his name. The partner is refusing to sell the house or buy out his share. It will be a long battle.

Many thanks for your advice and comments I'll post back and let you know how he gets on.

BG

What's the current routine? You say your brother is full-time main carer but is that because he withheld contact or was that decided at the time with mum's permission?

Also, any allegations of violence etc against your brother doesn't count as it doesn't follow that this would make her a bad parent.

Remember that even "violence" towards a child may not necessarily count. One man's smack is another man's assault so to speak.

Are social services involved? If not, why not? If your brother is so worried that he had to withhold contact that he would have got SS involved? They can be a great ally and a favourable report from them would pay dividends.

As for child benefit, if he is the main carer, he needs to contact the CB people and put in a dispute. This will also take time but at least its on record and the ball is rolling.

To be honest he is in for a long and rough fight. The dice is not loaded in his favour at all. The law is still applied very much in favour of the woman.

Hi niceguy2

He's always been the main carer as the mother went back to work after maternity leave and works shifts so the decision was made that he was to be a SAHD. She cant drive so has to take 2 trains and a bus to get to work so how she'd manage to do all that as well as look after a child is beyond me. My bro can earn money by doing freelance work from home which pays well.

When he left the family home with his child, the police were already in the house, restraining the mother (throwing stuff and punches at him) so it was not as if he was abducting his child. SS are involved but not in a big way. Any time I've seen my brother, it is hard to get information out of him as his son is clingy and I'm careful not to talk about the case in front of him. We live 60 miles apart so it's not easy to get info. The CB have been contacted so the dispute is in place but he's been warned it'll take about 6 months.

The more I read from everyone's replies, it looks like that he will not get full-time residency but what will happen is the mother manipulating the access to suit herself - ie I'll let you see him if you drive me to work. She's already demanding he drive her to work - doesnt understand the bit that they've split up!! We are not dealing with a rational person here.

BG

if he already living elsewhere with child i dont see how they would grant residency to the mother - at the most 50/50. so the driving to work need not apply.

he should steer clear of being involved with her in any way shape or form. the only involvement is handing over the child for set contact times if that is agreed - but he could also argue for supervised contact at least initially.

Because what she can do is simply give up her job and then is totally free to claim she can spend the most time with their child whilst your bro would have to juggle work too.

If SS are not involved in a big way then it sounds they are not overly concerned.

To be blunt, your brother's best hope is to delay things whilst maintaining being the full time carer. The longer this goes on for, the more established the status quo, the better his chances are of getting main residence.

His chances of getting this frankly are not high. Usually a court will at best award shared residence to a dad. Its very unusual to award full residence to a man unless the child is in danger.

His best bet is to somehow drag it out so that DS is at school and doing well. That way he can argue that the current routine is established, DS is doing well at school so why change a good routine.

2 things,
these cases can take upto a year, if the child is with father now and in the meantime untill then, then the judge is more than likely to order child to stay where he is.
They wouldn't disrupt the child's life again by moving child to another parent unless there are great reasons for it.
The parent who already has the child has the best chance.

As for a lawyer, absolutely get a new one, try out severel to get one who is into this and means business.

My dad got custody of me when I was small (thankfully), largely due to me already being in his care.
Good luck to your brother!

niecguy is absolutely right.
Delaying these cases to create status quo and showing how happy/ealthy child is with that status quo is possibly the best tactic.

Despite the hype about gender bias in some quarters the law in E&W and Scotland doesn't discriminate between mothers and fathers. At the last census 10% of single parent families in the UK were headed by a father and in England & Wales 25% of residence orders in recent years have been for shared residence.

As others have said parents (either gender) are at a disadvantage when it comes to changing the status quo. Although Scotland has a different system case law in E&W is sometimes referred to and the established case law is D v M;

"...it is generally accepted by those who are professionally concerned with children that, particularly in the early years, continuity of care is a most important part of a child's sense of security and that disruption to established bonds is to be avoided whenever it is possible to do so...".

Emotions and practical arrangements are best dealt with separately. By setting out an expectation the system is out to get fathers you are potentially feeding into your brother's feelings of hurt and fear which often manifest themselves as anger. This will do him no favour in children proceedings and may well create a self-fulfilling prophecy.

The law itself is not gender specific so technically its not biased. However, the application of the law is.

The simple fact of the matter is that in a sraight dispute. If you are a man going for full residence the chances of you getting it are incredibly slim. Doesn't matter if you have a big S tatooed on your chest and can leap over buildings with one jump. The best result most men could ever expect is shared residence.

I've heard of many cases where the man has to prove he is a fit parent to social services and the courts before his application is considered whereas the mum is considered competant until otherwise proven.

Times are thankfully changing but there still is a long way to go.

The biggest obstacle to fathers becoming the parent with the majority of care or sharing residence 50:50 on separation is the absence of fathers being the parent with the majority of care or sharing care 50:50 before separation and that has a lot to do with working practices.

Based on the last years figures available in the UK about 90% of men with dependent children work in full time inflexible jobs and fathers work longer hours than any other group of men. On the other hand the majority of women with dependent children will take a career gap and/or change to a less well paid, flexible or part time job to accommodate children. See;

www.dad.info/work/can-you-share-work-and-kids-in-the-uk

Once a pattern of care has been established during the relationship the person trying to change the pattern will be at a disadvantage.

this is true (fathers being at work tehrefore not being parent with care) but if there is sufficent evidence of poor parenting/domestic abuse/severe MH issues then that would be taken into account.

in my case, my exP was stayathome dad from 2005 - however in 2007 he suffered major MH issues, became violent and sggressive etc, this continued into 2008.

so his arguments that he had been the "parent with care" from 2005-2007 didnt hold much water - as the court took into account the events since 2007.

i continued to work full time (except for some periods off on stress leave due to the situation) nd while he was/is in a postion to be "full time carer" his severe MH issues/DA issues etc have not enabled him to gain residence or even 50/50 at this point in time.

currently -but only for last month i would say - he is showing good realtions with my dds and if this continues he will have opportunity to care for them more extensively during school holidays - which in turn may lead to him making more claims re: more of a 50/50 --if will benefit dds then will of course consider but as i said - it has only been a month really of consistent "good times"...not long enough yet!

however his ability to care for our disabled DS is in question due to specific incidents.

step by step - in this case it would seem that maintaining dad as main residence with sspecific contact would be way to go intially so mother can be assessed.

this could over time lead to more of a 50/50.

would be important for brother to be open about possibility of moving towards 50/50 if it all goes well but to insist that at present, supervised contact adn sole residencey to him, leading graudally to unsupervised and very very gradually voer time - if all goes well - to something like 50/50. better for child this way.

giving 50/50 at this point would not seem to be logical given what has happened (and her past with pvs child)