Occupation Order issued against me & request for primary care by abusive ex partner

[kelly31275]

I need help please!! To try and cut a very long story short I ended my 10 year relationship with the father of my 6 year old twin daughters in January. This was due to verbal and physical abuse that I had suffered. This was reported to the police but I didn't press charges for various reasons. Over the months we have continued to cohabit although on numerous occasions he said he would leave. We came to an agreement that the family home would be sold and he would give me a lump sum on trust to buy a house for the girls and myself. I was sitting waiting for this money to come so we could move on.
However last Tuesday there was an altercation in which he raised his fist to punch me in front of the children, although didn't actually hit me.
I called the police to report his threatening behaviour.
As a result of me calling the police he has instructed a solicitor and issued me with an occupation order to get me out of the property and requesting himself to be primary carer of the children.
I have always been primary carer and it would be extremely distressing for them if all of a sudden I wasn't there. Up until he lost his job recently he was never around, however is not looking for another job currently to put himself in a position to care for the children.
He is saying I've got family nearby I can go and stay with, which is true, but in no way on earth do I believe it is in the children's best interest for me to leave them with their dad who although loves them, has no idea as to how to look after them day to day and I have my concerns about his anger issues and mental well being considering losing his job, relationship breakdown, health issues etc.
he doesn't necessarily have people on the doorstep he can stay with but does have people living about an hour away and also has money in the bank to rent in the interim.
I am petrified that if I am asked to leave the children will be devastated.
I am seeing my solicitor on Friday.
he is the legal owner of the property but I have beneficial interest.
Anyone give me any words of advice or help.
what could be a good reason for me not to go and stay with family??
Thank you

Unles there is some specific reason like a diagnosed severe problem then a judge is unlikely to believe he is incapable of looking after 6 year old kids. Of course he can. He may not have had to before but they not newborns. If he is articulate and the only complain't on record is a raised fist which he denies then no judge is going to deny him having them in share care arrangement.

TheRe is clearly an issue with you both being in the house and bad atmosphere that is not in dc best interest.

I can't see strong evidence why you should not have 50/50 shared care. With him also having dc .

If house is his (what kind of benrficial interest ?) then I am not sure judge would agree that he should move out.. why can't you move ? Presumably dc could visit you in the relatives house ? Even if you have to share room for a while.

Sorry to be downer and i am playing devils advocate as you need to think of your responses if judge doesnt see it your way....but have recently been "victim" of ex creating a quite remarkable story which led to reports saying I was equally responsible for acrimonious relationship which was harmful to the dc. Etc. They can paint the I am the victim story....Be careful. You didn't press charges before. He will have his side of story. It will be he said she said.

Judge may simply be keen for one of you to move out so dc protected from violent atmosphere in which you equally to blame. After all if he was that bad why have you stayed there since January ?

Dc need stability of stable atmosphere not necessarily staying in specific place. They can cope with moving if they don't have to watch their parents arguing... if you have place to go nearby so dc can move between you and dad easily then why not ? You will need a strong argument to argue otherwise.

However if he does get angry and violent report report. Be ready to leave with dc to be safe. And report.

There will have been referral to sw but it takes a while as police presumably wrote that the dc were not in immediate danger. You may get a call and follow up nx week.

Staying together in bad atmosphere is not stability. Dc may benefit from one of you moving out and them going between houses. Judge won't want to stop them seeing either him or you without good reason. Ie a lot more evidence than the adults arguing. Neither parent would be abandoning the dc and causing distress by moving out as you would both presumably get equal access unless not in their best interest. It would take more hard evidence for different view on contact arrangements.

Just be prepared for judge not to see it your way..if your ex presents well and puts a good story together.

Ok so tomorrow is D day. I signed off my statement this morning and will be sent to his solicitor in about an hour.
I have a Barrister to represent me.
Can you believe he has not said a word to me about what he has done....and I haven't acknowledged anything. I can see he has a smug look on his face thinking I will be hopeless by the weekend and he will be primary carer for the girls!!
Fingers crossed!!

Fingers and toes crossed for you.

starting point should be 50/50. be prepared for the judge to decide you move out as you have family to stay with ? why should dad move one hour away? also take evidence of how much rentals cost and where dad could live if he moved locally and rented.

remember you may be asked by the judge to go out and sort something out over an hour or so before he signs any order. be ready to spend the whole day compromising. ie. you arrive at court, wait around, you go in present both sides to judge, judge says: go away and reach a compromise come back in one hour etc. you dont necessarily go in and out and get a decision/order straight off.

so decide now where you can compromise and where not. it doesn't have to be one or the other. you can have both of you as primary carers equally.

if he presents well and says he is able to care for the dc perfectly well then it may be the judge does agree you should move out and have them stay with you half the week or whatever.

so then you need to be asking for them to be with you 50%. same the other way round - dad will want them 50% . if he moves out near, then that could be organized you can both take them to school?

who does school pick ups now? would he pick up then you collect eg at 6 pm?

unless you have really hard evidence of domestic abuse eg conviction or he admitted it to police; then some judges are simply ready to take it as tit-for-tat arguments with both equally to blame. be warned.

and dont forget to take with you any documents eg copy of whatever gives you beneficial interest in the property etc. dont rely on papers being there or barrister having them. if there is something relevant take your own copies to be sure.

This is only a preliminary hearing 45 minutes as an interim measure and no final child arrangement orders will be made.
He has put in his statement that he wanted to be primary carer for the children and I could have access only by arrangement - he is only thinking of his own needs and hurting me, not the children.
Our agreement between ourselves was that the children would live me with and we would have an open door access whereby they could see each other whenever really. For something more arranged I am happy to go with 65:35. Myself and my ex are BOTH firm believers that children should have a main residence, but should also have a very good relationship with both parents.
In his own words my ex has ill health and is very stressed - I do not believe it is in the children's best interest or his for that matter to be with him all the time.
I do know that I may be out on my ear tomorrow, but I'm going to argue my hardest that its not in the children's best interest.

Cestlavielife don't you think it should be the violent one in the relationship that has to move out? Verbal and physical? In front of the children? Saying things to the children that are hurting them, saying bad things about their mother to them? Just a question as to why it should be me - so I can prepare an answer :)
I'm not saying he shouldn't see his children, as I totally believe they need to see him and be a part of each others lives.

I feel for you OP. I had a similar situation upon separation and although my ex was gunning for an occupation order (he denies this but repeatedly made false claims against me trying to get me arrested and I would therefore have been removed from the house via occupation order had he succeeded).

I had also been the primary carer for the DTs since birth and at the time of separation he wasn't working either. He made no efforts to get work and tried to claim 50:50 care of the children, making up "facts" to support his case such as that we had had a stream of nannies looking after the children since birth and therefore I was not only never the primary carer but also lazy (we had never had a nanny of any kind).

Our divorce is ongoing but thankfully the children hearings are over and he did not get his 50:50. His sense of injustice continues into the finances however; I strongly suspected my ex's attempt at shared residency was more about having an equal claim on the marital pot than anything else.

I agree with cestla that you should be prepared for compromise and for the judge to not automatically see things in the way you expect. Keep everything focussed on what is best for the children and as the primary carer, I would say there is a strong case to be made that you remaining in the home with the children and for him to rent locally if he can afford it.

My ex tried very hard to bully me into agreeing 50:50 care for the DTs after we separated, despite having never contributed much towards their care prior. It was all about the money. Having been awarded the standard EOW plus midweek tea and half the holidays, he recently took me back to court saying he wanted LESS time with them because he shouldn't have to lose out by taking time off work unpaid during the holidays!

Sorry that should say "although he was gunning... he didn't actually apply for one"

once you separate they wont be with one parent all the time. by separating physically, clearly there will be division of the Dc time between two parents so no one parent is going to have the children all of the time.

there is an apparent discrepancy between him being violent abusive etcetetc but "open door access" and a 65:35 split. if he was that bad, then you would have no open door and would be insisting on supervised contact in a contact centre.

so if you accept that he can be with the DC quite happily 35% of the time and can manage that quite well, then you cant then say you should have sole residence and that he is too abusive to be around the dc.

you also need clear evidence of his ill health, stress etc. does he accept he cant be with them due to stress? any parent shave stress/depression etc and dont have restricted access...i got supervised contact order initially because there were SS and police reports my ex had been violent during his severe mh episodes and had severe MH breakdown including hospital admission. and a police report including his admitting to smashing things up, etc.

later on as he took meds and improved his GP was very keen to say he was stable and that "depression" does not a bad parent make. uand this is the crux....you simply cannot tell a judge "he is too stressed to have the DC" - it would need to come from him and he is stating he is fine to have them living with him.... also surely moving out might stress him further?

unless he has been admitted to hospital with his stress and been treated in psych ward etc you really cant use it as valid argument against him having 50:50.

even with my exp's background and history, i have had a hard time getting people to listen sometimes...

go back to what is best for DC - you could say they love their house it's close to school, they can have their own rooms, it is best they stay there - but dont expect the judge to necessarily agree that you should be the one to reside there with them.

you could also suggest the kids stay in the house and you take it in turns with dad to stay here with them. there is a name for that I think ...

me and dc moved out - but it was to a better place with a garden they didnt have before...

PS I was also granted sole residence despite being full time working parent. the fact that you work and use childcare should not be a factor.

do you have the original agreement on what would happen in writing? that he intended that the family home would be sold and he would give me a lump sum on trust to buy a house for the girls and myself.

as far as i remember the initial hearing does result in an interim instruction or order to say what should happen in next two or three or six months. and initial hearing can still go on all day if judge says go off and compromise and come back in two hours. or judge might look at papers once and say ok for next two months it should be like this.

Well what a waste of time and money!!
After receiving my statement yesterday afternoon I think the penny dropped that he didn't stand a hope in hell of winning and today at court withdrew his application on advice of his solicitor!! Anyway at least I still have a home for now!
Theboutcome is we have to go to mediation to sort out the issues and teach a solution (hopefully), which is ironic as we had already reached a solution until he served me notice to attend court. But of course happy to do that to reach an amicable solution.
My barrister was ace today, but hopefully won't have to call on her again!!

Wow - so all in all not a waste really! I know there are plenty of battles to come but this kind of sets the scenery for them ...maybe it will progress easier now? And maybe you won't be so scared in future?

Yes you're right, not all a waste. Having spent time with legal professionals during the last week it has made me realise that I actually have a very good case for TOLATA and Sch. 1 of the Childrens act where he made me feel like I wasn't entitled to a penny. So now I won't be bullied into anything. It has also made him realise the same I think. I think that's why he pushed for mediation because he knows if it went to court he stood a high chance of losing that one too.
I'm really reasonably and level headed I think and I'm sure we can come to an anicable decision with some help from a mediator.