Applying to change a court order

[chippe]

Just looking for some advice if anyone has been through similar.

Should also say I'm in Scotland in case that makes a difference.

My DP separated from exW 8 years ago and have a 9 year old DS.

There is a court agreement in place regarding contact and DP has 2 overnights one week, 3 the next (so 5 of 14).

We're really keen to increase to 50/50 if possible but obviously this would need to go through court.

DPs point is that the existing arrangement was made when DS was only 1 (coming up for 2) and things have changed considerably since then.

However his ex says NO as there is an established routine that has been working well for DS and she doesn't see why it should change. She also claims to have asked him and he said he doesn't want any more overnights with his had as he likes it how it is.

Obviously there would a lot of stress and hassle going through the courts so just wondered what you think our chances would be?

@Pebbledashery
God. Good luck to your husband. Poor bloke.
You see, you have to have a dig about me and my husband. I guess that's just some people's go to attitude. 🤷

You think I'm too invested because I comment, but you keep implying a question to make me comment. I haven't missed any points. But you're not making any new arguments so I don't see any reason to keep going over old ground.

@Hekatestorch

So completely admitting you don't think the child's wishes should be listened to.

That's the issue. This thread is always going to be split into those that think the child should be listened to. And those that thing the fathers or, rather, his girlfriends wishes should be the priority.

😂😂😂 That's ridiculous. I gave you more credit than that. How disappointing.

We've been gradually floating the idea by DSS for a number of months.

This doesn't sound great, this poor boy will have been listening to the pressure being piled on at your house for all this time, and will be feeling hugely conflicted.

I'd wait for the idea of more time at yours to come from him, likely to be a few years down the line, rather than trying to push it on him.

@Millicentsparty

06Evesgarden

Millicentsparty

@Evesgarden
That boat has sailed.

Not if he makes a good case in court.

Are you the OP?

Neither of you are taking in to consideration how the lad feels about this. It's weird.

No, I'm not the op. If it goes to court, the sons opinion will be considered. What's weird about wanting an extra night or two with your child?

The DS has made it clear he doesn't want to go though, so that's the opinion he is likely to give when asked. Seems a complete waste of time going to court if that's the case, though it will likely increase conflict and stress between the two parents.

That's ridiculous. I gave you more credit than that. How disappointing

Still unable to answer any of the points.

Its appears you are agreeing with op, just because other people don't. From your longer posts.

I did actually say he was a bad parent. But i can't agree I he is an amazing parent either.

The bar is not that low. You are right you don't know the child and neither do I what we do know is that the child is fine with it as it is. The ops opinions of 'he has been manipulated' on 2 occasions seem to be based on 'how could he not want to be here 50:50, he enjoys his visits and has a nice bedroom'.

You seem to have decided the dad must be great, because he see the child and pays CMS and continued to see him when he had a flat. As good parenting goes, that's what parents should do. Again, that's not the bar for good parenting.

What we have seen is that if the sons opinion doesn't match what op and dp wants, it's disregarded as 'she is manipulating him'. That's not nurturing. Even if she was manipulating him, that's not a nurturing environment.

Then you banged on about a load of stuff other people posted, that I didn't. So pointless answering that.

You really have avoided the question about what happened if op and her dp break up. Since op is confident he wouldn't want or be able to do 50:50, what happens then?

My worry would be if the child hears from someone that the motive behind taking his mum to court is to not have to pay CMS. (Not saying that it is).
You risk your good relationship with him and your relationship with the mother will undoubtedly become high conflict, which is not what you want if you are planning on co-parenting. It could become an absolute nightmare even if you do win.

Well this descended into a bun fight. I think there’s a few pertinent points that need to be pulled out (from my first hand experience of CO’s/ allegations of PA and impact to children of contested hearings). My experience is in England but I believe parts of this will also apply in Scotland. As an aside, family courts in England also apply a great deal of weight to child’s wishes, even at primary school age.

Firstly, I don’t think it’s helpful to criticise the OP’s partner. I also don’t think it’s helpful to say whether the mother has been supportive/ problematic. Enough information simply has not been provided. The perspective I have given is how a court/ judge / Cafcass will approach an application like this (which seems highly likely will be contested by the mother).

1. I reiterate, allegations of PA (parental alienation) are pretty much ignored by family courts. They largely view allegations like this as conflict between parents. As part of the issues my partner has had with his exwife, professionals on PA were consulted. The overriding view is that if contact is progressing, the RP is adhering to existing CO’s and the child is visiting per the schedule, PA is not even looked at. It will be outright dismissed by the courts. Contact is progressing and the child is happy, PA is not a route that can be taken here.
2. Again, the allegation that the mother is manipulating/ being difficult. Unless this causes welfare issues/ the school has concerns - again, it’s meaningless noise and the court will view it as ‘conflict between parents.’ Unless there is clear proof that either contact is being obstructed and/ or the child suffering emotional harm, it will be disregarded. One parent will say ‘she won’t give extra time, she’s being difficult.’ To which the other parent responds ‘I’ve asked my child, he has a great bond with his dad, but he doesn’t want to go anymore than he does. Would you have me force him?’. A judge is then stuck between two parents (aka conflict between the parents.)
3. If the judge agrees the application has merit and needs to move forward, the child will be interviewed. Be very clear here. The child (by 9 or 10), will be asked, very clearly on how they would like to divide their time between their mum and their dad. That responsibility will be put on them. On this I have a very strong opinion, that’s a fucking awful position to place a child in.

Best case the child has to feel as though he is letting a parent down when being honest (assuming no manipulation is happening). What happens if the child says ‘I love my dad but I don’t want extra time with him, I want to stay with my mum.’ Is that going to be accepted?
Worse case (if manipulation is happening with either parent), then that child has to find the courage to speak up and then be forced to live with the parent (still at least 50% of the time) whose wishes they have just gone against.

What I cannot fathom is how a child wins in that situation. Let’s say this mother is manipulating the child and he knows he will face her wrath if he asks for more time with his dad. Then he asks. What happens to that child? Think the primary carer will be happy? Or could it intensify the situation the child is facing within the maternal home? It’s ok for the parent who’s gotten more contact, but what about the child? That child will face the brunt of the parents conflict.

These are the complexities that need to be fully thought through.

4. Relationship between the parents
   Court action over contact will intensify conflict between the parents. End of. They are awful proceedings, the questions can be invasive. Ultimately the person who pays the price of this conflict? The child. And judges know that.

5. Why now? How will it work? Why is this in the best interests of the child?

And what is the answer? Ok, you’ve said the child is older and more mature and should feel more comfortable being away from his mother and forming a more equal bond with his father

That actually doesn’t answer the question in my view.

You say you are 20-30 mins drive from his school. Ok. Is that the same in rush hour? How far away is his mother from the school? How much are you planning to add to this child’s day to day commute over and above what he has with his mother?
You clearly don’t live ‘locally’ to where the child has friends, so what is your plan if the child wishes to sustain those friendships?
What happens re clubs/ activities/ school runs? Who is doing those? Your partner?

But critically, how would this be in the child’s best interests? What is it in the current set up that isn’t in the child’s best interests?

On paper the courts will view the existing arrangements and think they’re working fine. Existing CO being adhered to and no issues with the child.

6. The child is repeatedly voicing to you and the mother that he is happy with the existing arrangement. If you wish to say he is being manipulated, where is your proof?
   Because of the child has said this to you/ your husband (which is quite hard for a child to do btw), he will say this to a neutral party. Categorically he will. Then what’s your plan? To continue to harangue that the child is being manipulated? It won’t work and you risk being viewed as the party inciting conflict (that’s a black mark against your partner btw).

7. Your role as partner in all of this. My advice telling you to step back comes from a good place. If two parents cannot compromise on a CO that they are both happy with and it proceeds to court? The child bears the brunt and the emotional/ mental pressure can be immense.
   In the kindest possible way, you are not the parent, this is not your child. Do not facilitate this or make any call - the person who needs to weigh up the pros and cons is the parent, your partner.

These situations are not straightforward.
Courts don’t care about rights of parents, what is fair/ unfair. They try and protect the relationship of the child with both parents when they are young, whilst doing what they can to minimise conflict between parents. Even if they suspect that the primary carer is ‘resistant’, as long as CO’s are being fb adhered to and professionals around the child (teachers) have no concerns, they try and keep the status quo.

My partner (as I’ve inferred before) has his own CO issues over his children/ with his exwife. I am standing far back and adamantly refusing to get involved. I would not put my children through this sort of process so I will not get involved with anyone who chooses to do this for their child/ children. If two parents wish to do this, then the damage that is inflicted on their child is down to them and them alone.

Stay out of it is my advice.

I cannot reiterate more. Asking a child who is older, to choose which parent they want to spend time with and how much? It’s awful. The child cannot win. If this child loves his mum and his dad (which I absolutely assume he does), in which world do you (or your partner) think it is in his best interests to put the burden of choosing on him? A 9/10 year old child?

If the child says I like it how it is. He will feel like he’s letting his dad down.
If we follow your view and agree that he is being manipulated, we can say that if he doesn’t say ‘I’d actually like less time with my dad’, he is letting his mum down.

On which planet do parents think this is ok for their kids? And that is without doubt the saddest part of contested CO’s? The child’s voice/ choice is lost amongst what the parents needs are.

There are years ahead for bonds to be formed. All a child needs to know is that the door is always open, they are loved and they have a home with both parents. Maybe I’m very naive and simplistic, but I would never put my children in this situation. They cannot win.

@Pebbledashery

God. Good luck to your husband. Poor bloke. Honestly.. You've missed the point total. The kid is happy as he is. He will end up resenting his father if he drags if through the family court.

It isn’t the first time that dad has dragged mum through court. IIRC, the court order only exists because he was certain mum would be cutting contact after divorce. They had something called a separation agreement before that, I think?

And apparently mum sticks to the CO rigidly.

My DH was forced into court by his ex and I don’t think he’d go back now unless his kids begged him for a change. They’ve all got PTSD from it, I swear.

Not only does the kid not want this to change. Not only would his school and doctors attest to his health and well-being. Not only would no court change the order. But also, I can’t blame mum for being rigid and seeming obstructive.

I don’t want to pile on OP. I’m sure she isn’t a bad person. But it’s like the blind leading the blind with her and her DP. And it’s the little boy that will end up in ruin over it. They both just need to leave it well alone.

Stop piling pressure on this poor boy. Leave him alone and just be happy with how it is. I'm sure if he wants to see his dad more he'll be vocal about it.

@PeeAche people have PTSD because the process can be absolutely horrific.

In terms of why the Op’s partner went for a CO in the first place? Listen again I think that’s unfair of us to comment on. From what the OP has posted, it was advised by the lawyers. Either that was poor advice or advised based on the behaviours the mother was already displaying around contact. Sadly it’s not unheard of that ‘contact’ becomes problematic once financial discussions are resolved.

My partner was advised to do the same, given the problems he was getting around contact post separation. He has since questioned whether that was the right advice. Hindsight is a great thing to have, for most people it’s their first time finding themselves in this bewildering situation.

I do feel for parents caught up in these situations and to be honest? I thank the heavens that my lawyer resisted court and sent my ex and I to mediation. It was difficult, emotions were sky high. Decisions and paths get taken that cannot be undone.

@sassbott family solicitors, particularly those who are members of resolution, are suppose to encourage their clients to go to mediation if they refuse to agree arrangements for their children between themselves.

Unfortunately one or both parents can either refuse to mediate at all, not take mediation seriously or refuse to abide by the mediated agreement plus engage in other down right nasty behaviours towards the other parent, their household and/or people connected to them which is why one of the parents ends up applying to Court.

What is interesting in the OP's partner's case is there is no clause/direction in the CAO that states when the child reaches school age they need to mediate their agreement again or go back to Court. This indicates they may not have had a specialist advocate/barrister helping them.