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I'm in a tricky situation here and after some advice.
Me and my STBX wife split up in around July, I moved out of the house as she was creating a bad living situation with the kids, shouting, swearing all the time. We put the house on the market and got a buyer, I had kids alt weekends and once in the week.
Last week I called the house to speak to the kids and my son answered. She'd left them alone (5 & 4) while she went to work for an hour or 2, I called police and they turned up and took the kids from her care and gave them to me, they had to get my eldest to open the back door as she'd told them not to open the front door to anyone. She was arrested for neglect when she finally returned an hour later and then released under investigation. She told social services that I can have full custody of the children as she was struggling to cope. My 5 YO told me that she left them alone regular (not proven and she denies).
So me and my 2 children are living in my parents 4 bed house at the moment (with parents) whilst she is in the 3 bed on her own. Social Services have said as she has willingly given the children over to me this is a family arrangement and so we still both have equal parental rights, if I want this arrangement signed and sealed I have to go to court as normal which I am prepared to do.
Now, she is being very difficult about the house sale saying she won't move out until Feb 2019 and she has booked a session with a solicitor but me and the buyer are ready to exchange and complete basically now. The buyer is frustrated but I suspect they might hold on until then but I have no guarantee that she will move out as at the moment I am paying mortgage so she is living rent free (only my name on mortgage and deeds). Equity is about £75k of which we originally agreed to split 50/50.
That is the situation and my questions are:
Should I hold out and take her on her word that she will move out in Feb, bearing in mind that if she doesn't move out and we've exchanged then it is me who will be sued.
Could I apply for a Occupation Order?
Should I bite the bullet and take her to court about the financials, knowing that this will drag on for ages and we will lose the buyer, I am also living in my parents loft while my kids share a double bed, not ideal.
I also think that now kids are in my full time care that I would get more than 50/50. The 50/50 was based on the fact that once we both had our own houses then care of the kids will be split 50/50, but now it looks like she'll become a part time mom I'm thinking maybe I should go for more? She would never agree to that and would have to go to court for more. TBH i can set up with 38k (50%)quite easily.
Any advice appreciated, thanks.
Personally I would go to court for an urgent order regarding the house and the children. You fill out the forms and take them to the court in person. You should 'in theory' get in front of a judge within 48 hours.
As Yoda said, go to court ASAP, also if she is talking to a solicitor, stop her from having the kids unsupervised before you have a court order giving you interim residence, in case she keeps them and refuses to hand them back over.
You will need hard evidence such as police and social service reports that she left the kids unattended and agreed for you to have full time care.
Thanks, what order would I be applying for?
A child arrangements order and a occupation order?
There's 2 other pertinent points also:
1. I don't want to move back into the maritial home, I've already submitted forms to move the children's schools close to where we live now at my parents. I just want the house sold so I can buy close to my parents as my mum is basically doing the school runs and allowing me to still work.
2. I also stupidly let her have about 3 hours unsupervised contact on Sunday, I take it this is going to scupper my argument in court?
Given those points do you still recommend court?
Don’t get me wrong, you do want your children to have a lovely relationship with their mother, that’s essential to their well being, it’s just that right now you face the risk she might keep the kids and not return them back to you, I’ve seen that happen, and fathers who had been primary careers became every other weekend dads.
I think you’d be crazy to not take proper legal advise and professional barrister representation. Yes it will cost a fortune, but the flip side of that is you get to be a permanent presence in your kids life.
Have you registered the kids with a local GP ? And who is receiving child benefit ?
Thanks, she is claiming child benefits but I've just posted the forms for me to claim. Will transfer them to a local GP this week.
Should I apply for an urgent hearing do you think?
Yes, I think you should apply for an urgent hearing, hire an experienced barrister to represent you, take evidence from the police and social services with you, and the GP registration should help too.
If you get awarded an interim residence order, that should help move the child benefit on to you.
The part I’m not sure about is, how does all this work regarding the fact that you are still married. Have divorce proceedings started ? Will a court make a residence order before the divorce is concluded ?
Hence why good quality legal advise might be better than advise from the internet.
Thanks, yes the divorce has been started, Decree Nisi has been applied for and uncontested. Just awaiting the Decree Nisi in the post.
I am awaiting a call back from a solicitor. Thanks
You can easily go alone to make an urgent application taking the evidence you have so far and the court will very likely issue an interim order for the children to remain in your care.
If you want to instruct a solicitor or barrister, do that for the subsequent hearings.
I attended court today for an emergency session for a Child Arrangement Order and a Prohibited Steps Order. I was granted the PSO which was that she cannot forcefully take the children from my care.
The CAO was not granted as they said that the mother wasn't given notice that I was attending court today and so she didn't have the chance to object.
We have a hearing next week where it will be decided who will have interim residency before it then goes to a first hearing in the future.
Thank you for keeping us updated, it’s helpful to learn about how this develops. Best luck.
So I went to court today, this time it was heard by a Judge and not a magistrates bench. She brought up several allegations, [censored] for tat stuff, luckily no DV allegations. She turned on the waterworks almost immediately and gave a very poor excuse why the children were left alone (her friend was supposed to look after them but never arrived) and it was completely different from her reasons which she gave to the police when arrested, however the only evidence the judge had and would see is my original statement.
Judge stuck with current PSO that she is not to take the children from my care etc but added that she can have 4 hours supervised contact per week at her house and only with a named mutual friend present as she wouldn't accept non of my family being present, I agreed with this as I do think the children should see her. This will be in effect until the FHDR hearing at the end of January.
An interesting point was she was allowed her community mental health nurse in the court room who was also allowed to speak for her and also the nurse started arguing with me!! I couldn't believe it.
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