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My fiancé split up with his Ex 9 years ago. There was never any question of abuse and at the time they had a 1 year old daughter, whose birth certificate he’s named on. After much persuasion from her family the mum took the daughter with her when she went to live with her mother over 100 miles away. The breakup was his decision and to begin with she refused him access out of spite. Eventually however an agreement was struck; A maintenance payment was established, he would call to speak to the child every day and go to collect her every 2 weeks.
Unfortunately, not long after this the recession hit and my fiance lost his job. He was unemployed for around 6 months and then for a year could find nothing but minimum wage employment. He couldn’t afford the petrol to go and get her and had to sell his car to pay the rent. The council wouldn’t grant him benefits so during his unemployment we were entirely dependent on my (very basic) wage and my old vehicle that was prone to breakdown (he walked or rode a bicycle to work). In order to prevent problems with the mother, I continued to pay the agreed maintenance payment from my personal account.
As a result, 2 weekly visits became difficult to maintain. We still tried to make it work and always endeavoured to make the mother aware of the situation but occasionally it was out of our control (i.e. car broke down en route) and we would have to cancel last minute. After a couple of these missed visits it was agreed that to avoid disappointing the toddler he would go once a month, without fail, and he began borrowing other family member’s cars to minimise potential issues.
Eventually he found a stable occupation with career prospects. The child’s mum moved on, got married and had another child. I bought a better car. Things calmed down and we talked about having her more often. The parents discussed it and the arrangement went back to every 2 weeks, but given the cost of fuel it was agreed that they would meet us half way for an increase in maintenance payments. I upped the payments but unfortunately before the first of these trips the new husband had an accident which prevented him driving and at the time Mum had no licence of her own. She promised that she would honour the agreement as soon as she passed her test. In the meantime, we would keep to the 1 monthly visit. She passed her test several years ago and the husband has since recovered enough to drive but despite numerous attempts to action this to date she has ignored them all.
Instead, a couple of years ago (after the daughter expressed a wish to see her dad more often) it was agreed that we would try 3 weekly visits. This was fine until recently, when there was a misunderstanding. My fiancé had to work the second weekend of the month (exactly 3 weeks since the last visit) so he and his daughter had agreed to the weekend after instead. Mum however was unaware of this and hadn’t told us they were planning a surprise trip that weekend. The misunderstanding came to light in the second week and she was busy every other weekend in Oct. Mum had been confusing her by counting down to the second weekend whilst Dad counted to the third. The only other time we could have her was the following Monday night to Friday (half term – we didn’t know), but the babysitters were booked up and it was too late notice to book any time off. Disappointment ensued and mum threatened court action.
It is worth noting that these weekends have always been flexible. We aim for roughly every 3 weeks but if there’s something she wants to do at home (or her other family has plans) we change it, if we have something booked (like work) we change it, but always with at least 2 weeks notice. Each visit is decided as and when we know what everyone is up to. The parents have little contact now (though Mum usually lets us know when the child is on school holidays or busy weekend-wise) so visits are mostly arranged through the child. I realise that in the beginning there were a few issues, but can’t remember a time in the last 7+ years when we said we would get her and didn’t. (In fact, last time we cancelled was at the child’s request (she had invited friends for a sleepover and forgot it was a Dad weekend!)
My fiancé has always done his best to make sure his daughter doesn’t get caught up in the middle of the drama. Unfortunately however, though he has never said a bad word about her in front of his daughter, the mum regularly tells her how [censored] he is. We’ve lost count of the amount of times she’s threatened the child directly with not seeing her Dad and she constantly compares him to her own father, bringing up the pain she felt as a child when he walked out of her life completely.
After both calmed down, promises (regarding better communication etc) were made and we thought that was the end of it until Mum responded today to his repeated request for confirmation that we could have her this weekend (1st in Nov). The answer; “Not until I’ve taken you to court”. He first requested confirmation 2 weeks ago and she knows that him and his daughter have been discussing it since. Usually, no news is good news. She has been answering other messages so I’m sure she has let this go on purely to spite him. Now it will look to the daughter like he’s let her down twice in a row and she’s taken away her phone so he can’t explain otherwise.
I feel we have been nothing but accommodating to the mother. So as not to rock the boat the father has allowed her to make the majority of decisions regarding his daughter’s life (including moving her in with and allowing another man to call himself her “Daddy” without any consultation) and last month we even offered to help towards supporting her other child when she planned to commence divorce proceedings because (her words) "He has anger issues as a result of his accident"! She changed her mind shortly afterwards (though how my fiance feels about his daughter moving back in with said "Anger issues" was never considered) but the offer was made none-the-less... My fiance still calls to wish his daughter goodnight every evening, usually chatting for about an hour and he misses her like crazy. We often book days off or hire babysitters to look after her during the working day so that (when informed) we can have her for longer periods over school breaks. We try to take her away at least once every couple of years and the maintenance payments have been upped a third time at the mum’s request.
My fiance is a very private person who refuses to consider mediation and to be honest, as mum has made it quite clear that regardless of the outcome we will be going to court, we see no benefit in it for us or the child. It’s simply a stepping stone for her to cause further grief. What can we do?? He just wants to see his daughter and spare her the heartache of going through court. If he thought there was any way to reason with mum he would turn up this weekend but it’s a long way to go for nothing and she’s done a great job of convincing herself that he’s the father who constantly disappoints. My worry is that this image is being impressed on his daughter and it’s simply not true… Her latest attack was to state that their daughter doesn’t want to see him until the court sets specific dates and terms for visitation but (a) The child has never suggested anything of the sort to us (and was looking forward to this weekend’s trip), (b) A 10 year old clearly has no idea what court proceedings might entail or how long it could take and (c) We feel it is totally irresponsible and unfair to involve her in such a decision - especially given that only one parent was present and all she wants to do is please them both.
Can Mum refuse Dad access until a court or mediation date is agreed? Is there some form of order we can issue to prevent her from refusing him access and talking smack about him to his child? Can she make him go to mediation? Do we have a case to claim instability on her or her husband's part? Can we enforce the fortnightly arrangement for them to meet us half way if we can find proof of her agreeing to it? What chance (If any) would we have of claiming custody if it got to court? [FYI We are both in good steady jobs, we have a place to live and have a stable 9 year relationship behind us] We know that she is now old enough to decide who she wants to live with and we would be genuinely happy to have her but we’ve never wanted to force such a decision on her. We also wouldn’t have a clue how to make her mother honour it if she chose us... I honestly dread to think of the psychological damage this is already doing to her. Her mum makes out that that’s the reason she’s doing this but we genuinely feel it has a lot more to do with her own Daddy issues and that certainly of late she is doing the child more harm than good.
Apologies for the length of my message - Any help would be much appreciated.
Hi there
Mediation is a requirement before a court application can be made unfortunately, even if either party feels it won't be successful, it has to be attempted first.
Usually the non resident parent is the one to pursue a court order, because the resident parent obstructs contact and once mediation is initiated, the resident parent would often suspend contact. This isn't the case in your situation and to be honest I'm unclear why the mother wants to go to court... The non resident parent cannot be made to have contact by the courts. It would seem strange for the resident parent to make an application to have a set schedule put in place and not agree to contact happening in the meantime!
To answer your questions....the ex can stop contact whenever she likes, when there's no order in place.
The only order you can apply for would be Child Arrangements Order and mediation has to be attempted first.
You could tell the court about any safeguarding issues/risks to the child when a court application is made, this would be done with form C1a.
You can request that pick up and drop off is shared, either a halfway point or one parent doing one leg of the journey and the other parent the return leg. It's a grey area and if you can show that she had previously agreed to this that may help getting it included in an order.
Transferring residence is very difficult to achieve, even where there has been harm to a child. At 10 years old her wishes would be listened to, but she isn't considered old enough to choose, generally that would happen when she is a teenager. Courts are also loathe to separate siblings.
Perhaps your partner should suggest mediation as a way of sorting this out, court should always be a last resort.
Best of luck
Thank you so much for your response. The mum wants to pursue a court order to insist on exactly 3 weekly visits or nothing at all. As I explained, this has always been flexible to both parties benefit. Sometimes it's 2 weeks, sometimes 4...
She says this is causing distress to the child but this is the first we've heard of it and his daughter always has had plenty of notice so as not to get her hopes up and dashed at the last minute (as was the case in the early years). Now she tells us the child doesn't want to see him until a court insists on a 3 week order and has cut off all forms of contact for us to confirm.
Will issues from 8 or 9years ago stand up in mediation or court? Will we able to include having her for longer (possibly extra) visits in school holidays in any formal agreement? What happens if once said agreement is in place either party needs to rearrange or can't make a 3rd weekend? What is the recourse? I honestly don't see the point of such an inflexible agreement but she seems adamant that a formal agreement is necessary.
And where do we stand on recent events? Admittedly there were communication issues on both parts with the first let down but the second feels like manipulation on her part. I'm worried she's already using it against us with the child and will do the same with a mediator. She claims there were more of these issues beforehand but we've never been aware of any distress as like I said, my fiance talks to his daughter every day and she has never seemed bothered that the visits weren't more evenly spaced. She's always well informed & we only have her mother's word (per the recent correspondence) that this has been upsetting for her.
Many thanks
The court are only interested in moving things forward and would consider events 8-9 years ago as historic.
The mediators role is to facilitate discussion and encourage agreement, they wouldn't be sitting in any kind of judgement and if they felt that mediation wouldn't be appropriate, they would sign off the form to enable a court application.
It's perfectly acceptable to ask for extra time during school holidays, even a 50/50 split. You could also ask for shared, alternate Christmas and birthdays. The most common schedule of contact is a full weekend every fortnight and a midweek contact weekly, but there are many variables and if you have had a workable schedule that's been in place for a while there's no reason not to expect that to be defined in an order. As I said, courts can't make a parent have contact and the resident parent can only be ordered to make a child available on set times and days. The courts would also expect that parents are grown up enough to accept that some flexibility needs to be bought into the equation, for the kinds of things you mentioned in your opening post.
I think that rather than allow the mother to take the initiative, it would be better for your partner to instigate mediation and if that failed, a court application to ask for a schedule of contact that you would require (every 3 weeks), plus shared travel and holidays. To wait for her to make the moves may leave him on the back foot, as she will be the one making proposals based on what she wants. The fact that he speaks with his daughter daily and has had regular contact will be in his favour, should he start the process.
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