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I've been separated from my wife for about 18 months now. We have a 3 year old son (she also has another 2 sons from a previous marriage) however we weren't married when he was born - we did however jointly register his birth so I believe this gives me equal parenting responsibilities?
Since separating (apart from the first few months) I have had routine overnight contact with my son. There were some difficulties agreeing contact arrangements at first and eventually we came to an agreement that I would have overnight contact on alternate weekends and every Wednesday night. We had the routine and all the dates agreed via our solicitors which has been in place for almost a year now. He's started nursery recently and so I've now also arranged flexible working with my employer so that I can take him to nursery and collect him from his child minder on the days that I have him. All my planning revolves around the time that I have with my son and having the routine and dates all set out has helped my plan things well in advance.
All sounds good so far so why am I posting here you may ask?....
My wife recently went to America (for work reasons apparently) and so she asked me if I would have my son to stay with me on what was meant to be 'her weekend' with him. Of course I agreed, I was happy to help out as it meant I would have more time with my son. Here comes the problem.... As soon as she returned I received an email from her on the Wednesday telling me that I wasn't having my son on the coming weekend. Clearly I wasn't happy about it as I was due to have him but as she had missed her weekend previously I told her that I was happy to come to some agreement were she could have him for some of the time. She didn't agree and simply refused to allow me to collect him as normal.
She also informed me in her email (with no discussion) that our schedule of weekends were swapping with immediate effect. This has thrown all my planning out of the window.
Can anyone tell me if she can simply dictate these changes to me without any discussion or agreement? It all seems a bit dictatorial to me and I don't think it's beyond reason to expect such decisions to be reached by mutual agreement particularly as we had previously agreed our contact arrangements via solicitors.
Thanks!
As I read it, there is no contact order, so anything agreed between the two of you is by mutual consent, so if your ex no longer consents, then there is nothing to compel her to continue with the agreement. Technically, there is also nothing to say that you simply can't go and collect your son whether your ex agrees to this or not - however, as has been mentioned before, this sort of action (a tug of war with your son in the middle) is view dimly by the courts. I would say that you are going to need to go to mediation to see if the situation can be resolved, and if not, onto court proceedings.
A contact order can specify quite clearly when and how contact is to take place - be mindful that going to court will make the situation adversarial, so if you can do this by mediation, then that's the best way to go, but if not, a court will certainly understand that you need a definite timetable to allow you to schedule work, and - the important part - be able to see your son reliably.
If your ex were to relocate to the USA, I'm not sure what the position is without a residence order (hopefully, the legal experts on here will clarify) - if there is a residence order in place, then your son can't be taken abroad for more than a month. I know you didn't say that your ex was relocating, but with her change in attitude and doing some work over there, it's a possibility I'd be mindful of.
Hi Spearon
Firstly welcome to Dadtalk. 🙂
We will get our legal experts to sign in and give you some advice on this matter.
It may take them a few days so please hang in there.
Dear Spearon,
Thank you for contacting the Children’s Legal Centre, an independent charity concerned with law and policy affecting children and young people.
Unfortunately as the contact arrangements were made by agreement this is not legally binding and does mean that either you or the mother are able to alter the arrangement at any time.
As the mother is the resident parent (the parent with whom the child lives) she will have the final say on any contact between yourself and your son and is able to dictate this to you as your son is not old enough to make these decisions for himself and will not be until he is approximately a teenager.
You are able to suggest mediation to the mother and attempt to resolve this matter. The contact number for National Family Mediation is 01392 271610.
If this is unsuccessful, then it will be for you to decide whether you wish to take the matter to court.
It is not advisable to go and collect your son without the mother’s agreement, as this will possibly lead to conflict and push the mother to stop all contact until the matter goes to court. The court are unlikely to be pleased with the mother changing the contact unless there was a real reason for doing so, but would still would be unlikely to feel it was best for the child for you to remove him against the mother’s wishes.
If you are required to apply to court then you are able to do this yourself or with a solicitor, whichever you prefer. To make the application yourself you would need to file the C100 form at the Family Proceedings Court closest to where your son lives and there will be a fee of £175. This form is available at www.hmcs.gov.uk as are the guidance forms CB1 and CB3.
The court would consider all the circumstances, including your work commitments, what your son is used to, the mother’s reasons for changing contact and the fact that there has been a long standing agreement in place. The court would then make a decision as to what contact to put in place based on what they believe to be best for your son.
Anything placed into the court order is legally binding and if the mother breaches or alters this without your consent you would be able to ask the court to enforce the order.
Should your ex partner be considering relocating to America, then she would need your consent to take your son with her, as you are married and on the birth certificate so have Parental Responsibility. Should she take the child on a permanent basis without this, then this would be considered child abduction and organisations such as ReUnite can become involved to attempt to have your son returned to the UK.
If the mother wishes to go abroad permanently and you will not consent, she is able to apply to the court for permission to remove the child from the jurisdiction with her. This will be a decision for the court to make based on what they believe to be best for your son.
If the mother or you wished to go on holiday with the child, then from a strictly legal point of view you should both always seek the consent of the other. If the resident parent does go on holiday without your consent then it is unlikely that any legal proceedings would be brought against her unless she keeps the child out of the country for more than 28 days. You will always require the resident parent’s consent to remove your son from the UK.
We hope this information is useful to you. Should you require any further advice please contact our Child Law Advice Line on 0808 8020 008 and an advisor will be happy to help.
Kind Regards
Children’s Legal Centre
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