[Solved] Ex has cancer

Thanks for the input actd

Yes, generally things are plesant since I mostly adopt a passive position to avoid conflicts and tension around my daughter.

I certainly believe your suggestion is the next step I should take however I'd like to be aware of legal standings.

My experience of the family is that they are very supportive unless you disagree with them so I expect resistance or at least them trying to influence me to their way of thinking.

They are very dominant which has positive and negative connotations to my daughters upbringing.

I'm still hopeful that my ex will pull through but (due to my experience) have to at least anticipate / consider the worst case scenario.

Dear Sir (TheBear)
Thank you for your enquiry.
Before we are able to advise you fully we have to establish if you have Parental Responsibility for your daughter. You would have Parental Responsibility for your daughter if:
• You were married to the mother at the time of your daughter’s birth; or
• You subsequently married the mother after the birth of your daughter; or
• You are named on your daughter’s birth certificates; or
• You have entered into a Parental Responsibility Agreement with the mother; or
• You had a Parental Responsibility Order granted in your favour by the courts; or
• You had had residence of your daughter awarded in your favour through a Residence or Child Arrangement Order by the courts.
Having Parental Responsibility would mean you would have equal legal rights for your daughter along with the mother. In practice this would mean you will have a right to an equal say in all key decisions in your daughter’s life, this would include for example any medical, educational or religious decisions and any decision in changing your daughter’s surname. It does not grant either of you the automatic right to have your daughter reside with you or allow any automatic right to contact with your daughter.
In the absence of any court orders saying otherwise your daughter can legally reside with either parent with Parental Responsibility and there is no legal assumption in favour of either mother or father. In practice this can mean whoever is the resident parent at any given time can retain the children in their care and refuse to allow the other parent any contact with the children. Although both parents do have a duty to be reasonable and if they are not it could reflect poorly on them in any future court proceedings.
If you have Parental Responsibility then if and when the mother passes away, you will be the sole person with Parental Responsibility for your daughter. The only exception to this is if the mother holds a Residence Order or Child Arrangements Order naming her as the resident parent. If the mother holds this it is possible for her to name her parents as the testamentary guardians of your daughter in her will. This will have the effect of granting Parental Responsibility to the guardians if and when the mother passes away. When this happens both you and the testamentary guardians will have Parental Responsibility for your daughter but this is not an automatic right to have the daughter live with any of you.
If there is a dispute about where the daughter is to live then in order to come to a long term decision we would advise for you to attempt mediation .This would involve you, the mother and a third party mediator coming together to try and resolve this without recourse to court action. It might be possible to also involve the grandparents in this process. Mediation is mandatory and must be attempted before any application to court is made. For more information on mediation and for assistance in organizing this you can contact National Family Mediation on 03004000636.
If a dispute arises with the grandparents upon the mother’s death and mediation does not resolve the issue then you can apply to court for a Child Arrangements Order for residence by filling in a C100 form, available at your local Family Court or alternatively you can download the form at www.justice.gov.uk . This is a new order that came into force on the 22nd of April and replaced the old Contact and Residence Orders.
Once the application for residence is made the parties involved will receive a date when they have to attend court. This is known as a Directions Hearing. This is a hearing to decide what the issues are between the parties and what procedural action needs to be taken before a full hearing. A person making an application to court will be able to gain advice from the courts about the process of going to court, but the court will not be able to provide legal advice.
In making a decision on the upbringing of a child, the welfare of the child is the court's paramount consideration. The court will also consider the 'welfare checklist' contained in s.1(3) Children Act 1989. In reaching its decision, the court must consider:
• the wishes and feelings of the child,
• the child's physical, emotional and educational needs,
• the likely effect on the child of any change in circumstances,
• the child's age, [censored], background and any other of his or her characteristics which the court considers relevant,
• any harm which the child has suffered or is at risk of suffering,
• how capable each parent (and any other relevant person) is of meeting the child's needs.
When an application is made to court for a Child Arrangements Order, and the parents are not able to reach agreement, the court will usually ask a Children and Family Reporter from CAFCASS to make a report to the court.
The purpose is to advise the court on what is in the best interests of the child. The reporter will consider all the information and make a recommendation about which parent the child should live with. The courts generally place great weight on the CAFCASS report and will only depart from the recommendations if there are good reasons for doing so.
If the parties have not settled the issues between themselves, then the CAFCASS Reporter will normally attend and give evidence to the court about the parties and the Reporter's views on what he or she thinks would be in the best interests of the child.
It is worth noting that the grandparents could also apply to court for a Child Arrangements Order. Should the grandparents wish to apply to court for a Child Arrangements Order, you will be the respondent and you will have the opportunity to oppose the application on the basis of the 'welfare checklist' contained in s.1(3) Children Act 1989, as mentioned above.
It is possible for you to represent yourself in court. For guidance on the process please refer to the Bar Council Guide to Representing Yourself in Court: www.barcouncil.org.uk .
If you do not have Parental Responsibility and the mother names the grandparents as testamentary guardians then upon the mother’s death the testamentary guardians will be the sole people with Parental Responsibility for your daughter. You are still able to apply for a Child Arrangements Order and can oppose any application for a Child Arrangements Order by the grandparents.
Due to the complexity of your query and the fact that it does depend on a number of factors you may wish to contact us to clarify the legal position. Our advice line phone service on 0808 802 0008 is available between Mon-Fri 8 am-8pm.

Yours sincerely,

CORAM CHILDREN’S LEGAL CENTRE

I'm sorry if you found my response a little disconcerting... Perhaps I should have taken more time to explain my suggestions and my way of thinking.

As you say, you feel her condition is advanced, although you are in the dark about any projections that may have been made about her prognosis or timeframe of her illness. I agree with you that this has created this situation and had you been involved in all the discussions about your daughter with time frames, you may not be feeling quite so marginalised.

My first suggestion was mediation, I had thought about suggesting a more informal meeting with your ex and her parents first, but when you said that all [censored] had let loose during your chat with your ex, I thought that a more formal approach might be more workable. ...having a professional mediator there as an impartial third party may help to be able to discuss things less emotionally. If mediation is sought, because of the complexities involved here, I would anticipate a number of sessions would be required to reach agreement, this would take a few months. If agreement can't be reached and you make the decision to pursue residency then you are looking at a further few months....so initiating mediation and then court action isn't a quick affair, but if your worse fears are realised, you don't have the luxury of time.

If a meeting between you, your ex and her parents is an avenue you wish to explore then my only suggestion would be that you have a family member with you during the meeting, just to even things out a bit.

My concerns about waiting for the situation to play out and then taking action after your ex's passing are that as and if her condition deteriorates, or if she and your daughter are already living with her parents (as is often the case in a situation like this) then a court might take the stance that your daughter is settled with her grandparents as she has already been living with them for months possibly. So effectively this wouldn't work in your favour, the fact that your contact with your daughter hasn't increased during your ex's illness is again something that might be highlighted.

I completely understand your confusion and hesitancy, you don't have the facts, so of course you will be torn....knowledge is power and so knowing your legal rights is important, but equally you need to know more about your ex's condition too and this is where mediation could help...she may not attend of course and then your options become limited to court, with the decision to wait or not... I think the decision and the repercussions of that are so important that it is essential to seek proper legal advise on it, from a solicitor that has lots of experience in family law.

Another option would be to write to her, A letter laying out your feelings and requesting that you become a part of the solution... There is power in the written word and in this everything instant, technological age we often forget that!

Once again, sorry for my rather short and to the point first reply and I hope I have explained my feelings a little better this time round! We will do,all we can to support you, whatever you decide.

Best of luck.

Hi Nanny Jane,

Thanks for the further response. It was only a little disconcerted since I agreed with your view that some sort of action / intervention is required at this time. My thinking being that I don't want to add insult to injury and be seen as the bad guy who's causing trouble during what is a horrifically turbulent time for my ex.

However my daughters welfare needs to take precedent over my personal feelings, so I am seeking further advice and increasing my legal knowledge on the situation so as to make an informed decision on a plan of action.

Many thanks for your time to write, the knowledge you have provided is extremely valuable and I completely agree with your thoughts.

Cheers

...My thinking being that I don't want to add insult to injury and be seen as the bad guy who's causing trouble during what is a horrifically turbulent time for my ex.

NJ replied...

...it's very difficult and it's one of those can't do right for doing wrong situations. That why I suggested a personal letter written from the heart, expressing a desire to help, a request to be involved and being part of the solution.

The bear said....

However my daughters welfare needs to take precedent over my personal feelings, so I am seeking further advice and increasing my legal knowledge on the situation so as to make an informed decision on a plan of action.

NJ replied

I can't agree with this more....you sound like a reasonable guy and at the end of the day you only want what is best for your daughter. I feel that right now you and your ex need to be working together to this end, contact should be increased and you did get agreement from her on that, so perhaps this is something that you can work on and a solicitors input might help with.

Yo BEAR

I saw this thread yesterday and have been thinking about it ever since. Have not been able to get it out of my head.

I feel for you BEAR I really do. I imagined that because you had PR that automatically you would be able to offer your daughter a loving house with her father.

Then I saw this:

The only exception to this is if the mother holds a Residence Order or Child Arrangements Order naming her as the resident parent. If the mother holds this it is possible for her to name her parents as the testamentary guardians of your daughter in her will.

I was shocked by this.

Do you know if you ex holds a Residence Order or Child Arrangements Order naming her as the resident parent or not?

After the worse happens surely the best thing for your daughter is to be with her father. She will be coping with the loss of her mother and will need her father to support her through this process (as well as additional support of her grandparents).

How do you change your ex wifes mind without appearing to be unsympathetic to her condition and her wishes?

I have no words, no wisdom to share. I just felt the need to say that i understand your plight and hope wiser people than me on here are able to offer you some great advice.

Having contacted Coram Legal Centre I have been advised to start mediation and if this does not resolve the issues then legal proceedings maybe required (not sure how I will pay for this but I'll manage somehow). Hopefully mediation will sort the issues once and for all.

To this end I have sent an application for mediation intervention and sent a text written from the heart as you suggest NJ.

Yes, I have verbal agreements to increase visitation, It was agreed that I would look after my daughter whilst she was in hospital - these things somehow don't happen. The facts are we agree things, I put myself out there and then I get knocked back. We talk about me being involved more, having my daughter for longer etc then when I make the request to have her longer (on a weekend for example I would suggest dropping her off at nursery on monday morning thus having her an extra nite) I'm told no!?!?!?

This is further compounded when I'm then accused of not making the effort.

I can only conclude that for whatever reason (and I'm sure they have my daughters best interest at heart) my voice, opinion and rights are not being heard. Maybe due to miscommunication, altered perceptions etc etc etc. Therefore I think mediation is the best way forward, so that things are set in stone, agreements are written and everyone involved is aware of their roles and responsibilities - everything is crystal clear and understood by all.

Its just terrible that it has to happen whilst my ex is so ill but maybe thats the catalyst that is needed for things to get addressed properly rather than keep going round in circles with me having constrain myself, hold my feelings in and opt for a passive approach.

Yo Yo Yo Babelfish.

Cheers dood, but I'm ok and dealing with things in a matter of fact way. I feel for my ex, I really do but I have to push that aside, my own feelings aside and think logically and systematically in order to figure out what's best for my daughter.

The ex does not hold a residency order as far as I'm aware and Im still a little confused by this as (rather naively) I assumed the same as you (as most people). I have checked the divorce papers and I have ticked the box to say that child will be living with mother but as far as I'm aware this does not constitute a residency order.

A 'residency order' suggests by virtue of its name where the child will reside, but in fact its more like a 'who owns child' document?!?!?

If I had known at the time of divorce that a shared Residency Order would be advisable I would have done it then!!!! Crazy innit, there's very little to alert you to such things if you sort the divorce out yourself.

PERSONALLY I think that when two people split with children involved they should automatically receive some kind of manual or booklet with detailed steps of what both parties should do to protect the child and themselves and save all the future hassle and confusion!!!! lol

'How do you change your ex wifes mind without appearing to be unsympathetic to her condition and her wishes?' Ive tried to talk and explain my position in the past, somehow this hasn't seemed to sink in, with little compassion for my postion / situation. Ergo I think that mediation is the next critical step to solve this - I may be perceived as a massive c**t for doing this, maybe they will think I'm trying to take advantage at this time etc etc but to be honest thats ok, they are entitled to their own opinions.

It may sound heartless but I have no choice, I have to think about what's best for my daughter - if that means upsetting people at such a critical time then its unavoidable. It's not exactly what I want to do but if I don't then I have no protection in place for my daughter or myself, in effect if I don't practice my rights then I loose those rights!

Fact is Corram advised that I seek mediation and if this fails to move to legal action since there's always a chance that I could loose my daughter in such a situation. So its just a matter of doing it, remaining sympathetic to my ex and offering support but also pushing the mediation forward to a conclusion.

I may loose the battle in mediation, I may loose the battle in court but at least I will have stayed true to what I believe is best for my child and will have tried!!!!

There are no negatives, only positives!!!!!

...I think you are doing the right thing TB... Lets hope she accepts mediation and you are able to get some discussion and agreement.

I must point out that anything decided in mediation is not legally binding, but you can have a Memorandum of Understanding written up which will hopefully reflect her wishes for your daughters future should the worse happen. If however mediation is unsuccessful then you will be free to pursue court action....I hope with all my heart that this doesn't become necessary.

I think it equally important that a schedule of increasing contact be an important part of your discussions and that you be informed of anything that will impact on your daughter.

Best of luck.

Good morning The Bear,
Good luck sorting this out. You are doing the right things and I think you have a good chance of having your daughter live with you in the longer term. Reading between the lines I don't think there is much chance of mediation working.
It is important that you can look your daughter in the eye when she is grown up and tell her you did everything you could for her.
Best wishes,
AO