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Good morning, this is my first post.
I went through quite a nasty divorce last year (decree absolute was in January this year). Before it was over I managed to obtain (at some considerable emotional and financial expense) a shared residency order for my son (then aged 8 and now nearly 10, he started school year 5 today). He lives with me in the former family home 6 days/fortnight in term time and 7 days/fortnight in the hols. My ex-wife received a very favourable cash settlement, and I pay about 8% of my income in CS (to the CSA). I'm retired, my ex-wife works as a teacher.
My son says he wishes to increase the proportion of time he spends with me (I think he would choose to reside with me, but I see the value of shared residency). I know my ex-wife would not agree to a change in the residency agreement (for financial reasons), so my question is at what point could I reasonably expect a court to take notice of my son's wishes, and so stand a reasonable chance a positive change to the agreement?
I have spoken with a couple of solicitors and done some research, but opinions seem to vary enormously. Some legal opinions seem to be that a child's wishes will be taken seriously at 10, some at 12 years, some that there is no particular age. I found CAFCASS to be rather biased (towards mothers) during the residency case last year, the (female) case investigator rather grudgingly conceded that my son wished to spend equal time with both parents, but was not prepared to recommend more than 'some shared residency solution' (which is why we came up with the 8 day:6 day split ourselves).
I don't want to put my son through more hassle than is necessary, and the current shared arrangement is working reasonably well (he is excelling at school), but I do want to do the best I can for him (clearly I think it would be better for him to be with me more because I have the time to devote to him, he agrees).
Is anyone able to offer advice on this matter?
Best wishes,
AO
Hi there
At 10 your sons wishes will carry some weight, but it doesn't follow that a court will change the order as it is working well. His wishes are far more likely to carry clout when he is 12/13. The court will see he is doing well at school and will see that you have a very good share of his time, I'm in two minds about it and I would assume that's why you have had differing opinions from solicitors.
We have a member posting at the moment who went back to court to vary his contact and he came away yesterday with less! As you can imagine he is reeling and preparing to appeal.
I would however look at the amount of CS you are paying 8% seems a lot considering the number of nights he spends with you. You can check that here
www.gov.uk/calculate-your-child-maintenance
Oh well, I suppose we will just have to just live with the discrimination for a while longer 🙁
Many thanks.
Time flies and before you know it he will be old enough to exert his authority, the mother will have a battle on her hands if she doesn't listen to him soon....at 16 he can just up and move in with you anyway.
Well, that is true enough I suppose, but 6 years is quite a long time, and there will be important choices affecting his life along the way (like which secondary school he goes to). So far I have been able to protect him so that important decisions are delayed until he is old enough to make his own determination (mothers generally seem to think they have the right to do whatever they wish with their offspring, taking no regard of PR or SROs, our society seems to think this is generally okay).
Life is not so bad for my son at the moment, although he finds spending 3 hours per day with a child-minder during the weeks he is with his mother irritating and wasteful. As he gets older his mother will be able to intimidate him less. Ho hum.
It seems stupid that he has to spend time with a child minder when he could spend the time with you and her agreeing to it wouldnt affect her maintenance as that is calculated on overnight stays.
You could think about using mediation, if you look for a mediator that offers child inclusive sessions this might be a way to convince her to agree he goes to you instead of a childminder. If she doesn't agree this might be something you could challenge in court, as a Specific Issue Order.
I'm pretty sure you have a good chance of success, those three hours a day amount to 15 hours a week , you are not asking to vary the order as such you are asking the court to be the first choice above a childminder.
Of course it is stupid: she is cutting off her nose to spite her face, but that is her way. I did do the child-minding (willingly and free of course) for the first term of last year, but I think it was a bit too successful in her eyes.
I never put any pressure on my boy to keep in touch during the weeks he is with his mother, but I noticed that when he was last with her he telephoned once and came over to see me twice, much to his mother's chagrin. Eventually she may realise he has a mind of his own.
I'm not sure it is worth pursuing a court case (or mediation) to volunteer for the child-minding. It would be quite expensive and even if it worked it would be pretty well unenforceable. If it is not going to be possible to change anything substantial yet I'll just continue being a good dad for the time being.
It might be worth trying mediation for the child minding - it's not enforceable, but just having a 3rd party might help. One point, even at age 12, his wishes will carry a lot of weight, but unless there is a good reason to move residence, a court probably won't do it (unless, say, your son kept running away from his mothers home and coming to you), so it may be a matter of just putting up with the best of the situation as it is. Your son knows he's welcome, and keeps coming to you - that's what matters really.
Thank you actd, that was a very candid, if somewhat disappointing reply.
My son has two well found homes, so there is unlikely to ever be a compelling reason to change arrangements, even though he may wish for that to happen.
I suppose there is something of a lesson here, in that perhaps I should have held out for a 7 day:7 day residency arrangement (we settled on a 8:6 split in term time, 7:7 in the holidays) at the time, but to do so would have prolonged the extremely painful legal process further. The emotional strain on me and my son was huge and we were pleased to have it go away. The legal advice at the time was that I'd done pretty well for a dad...
Best wishes,
AO
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