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Hi. Hoping someone can help advise me. There's a lot of background but I'll try to keep things as concise as possible. I'll start with my questions and then provide the history:
• I'd like to know given the history, your thoughts / experience of fathers trying to obtain custody of their children and whether they think I'd have a cat in hells chance of having a child arrangements / residency order in my favour.
• In the interim period, prior to any child arrangements / residency order, I'd like to know what practical steps I could take to start to have increased contact with my child given I have parental responsibility and my ex wife is acting completely unreasonably.
So with those questions in mind here's the background:
• I divorced my ex last year. The decree absolute was sealed 10 months after I left the family home after my wife attacked me. This followed years of marriage where she was, in my opinion extremely manipulative and emotionally abusive.
• We went to mediation and agreed the financial details which involved the sale of the family home through a consent order. In addition we agreed (as documented in a memo from the mediator) to shared parenting.
• However since that time I have had to live with my parents and as a result I have only been able to see my child every other w-end, during holidays and for dinners in the middle of the week. Nevertheless the intention has always been to return home and be more involved in my childs upbringing. My ex has been fully aware of this and I can prove this.
• Finally after months of trying to rebuild my life I am due to complete the purchase of a property in the vicinity of my child's school in the next week. For the past 3 weeks I have attempted to have a discussion with ex to talk about changes in parenting which would involve me seeing more of my child during the week - as would be expected given previous none legally binding agreements.
• My ex has refused to meet or discuss the issue and has now said that if I wish to change things "I would have to take her to court".
• In the absence of any order being in place, I believe I have every right to look after my child some weekday evenings as well as every other weekend. However given my ex's unreasonable attitude, she's preventing any agreement. Last thing I want to do is cause a scene in front of my child through trying to exercise my rights as a father however my rights are being interfered with by my ex.
• My ex behaves very erratically and I can illustrate this based on her emails / correspondence.
• My ex currently lives in a rented property running a business from the property, I believe against the rental agreement. If this were to come to light my child could effectively loose his / her home. This is not something I would considering exposing to a third party but I'm concerned over the stability my ex provides to my child.
Hi Andy and welcome to the forum
Attempting mediation is mandatory before you can apply to the court for a Child Arrangement Order & a mediator needs to sign the C100 form off. If your mediation took place within the last 4 months they will be able to this, if it wasn't you will need to attempt the process again first. If your ex refuses to attend or she attends and won't agree, then you can apply.
In the interim, if she will not agree to further contact, there is nothing that you can do. Unfortunately, beyond having Parental Responsibility for medical, educational matters etc you don't really have any rights to contact, the rights are of the child in the eyes of the court.
Providing there are no safeguarding issues, a bog standard arrangement achieved at court is usually every other weekend, share of school holidays and special occasions and one visit midweek, but that's not to say you wouldn't achieve a different schedule of contact.
Your ex's rental status would not be considered a potential safeguarding issue in the eyes of the court.
Have a good look through the stickies at the top of the Legal Eagle Section, there's a lot of info on the court process.
Feel free to keep asking questions and we will do what we can to assist you.
Good luck
Many thanks for the info Yoda. I have one follow up question.
You said that I don't have any rights. However I have parental responsibility for my child equal to the mothers. In the absence of any court order I consider my current rights to be exactly as they were before I was divorced. I'm still my child's father and there's no court order for residency or contact so I can't understand the basis for which I would have no rights.
To my mind I have all the rights of my ex as in abscense of any court order we are surely equal in the eyes of the law? Can you explain on what basis I would have no rights or even less rights than my ex.
Many thanks for the info Yoda. I have one follow up question.
You said that I don't have any rights. However I have parental responsibility for my child equal to the mothers. In the absence of any court order I consider my current rights to be exactly as they were before I was divorced. I'm still my child's father and there's no court order for residency or contact so I can't understand the basis for which I would have no rights.
To my mind I have all the rights of my ex as in abscense of any court order we are surely equal in the eyes of the law? Can you explain on what basis I would have no rights or even less rights than my ex.
You are conflating "rights" with "obligations" and the "child's rights".
Yes, in the eyes of the law you, and your ex, are equal "parents", pre and post divorce.
In relation to child arrangements - parents do not have "rights" (the child is not an object or a piece of property), but "obligations to protect and uphold the child's rights". The parents "rights" extend only as far as protecting the child's rights. An example:
It is the right of the child to have a meaningful relationship with both parents. If one parent attempts to undermine or block the contact or relationship between the child and the other parent - then the other parent does have a "right" (if you want to call it that) to challenge this situation in court (and many do) - but you should understand that you (as the other parent) are going to court to "protect and uphold" the child's right to have a relationship with both parents - you are not enforcing your "right" to have contact with the child.
Perhaps you might view this as terminology - but it is an important distinction and worth having at the forefront of your mind if your situation ends up in court.
(You might want to look into parental responsibility, start here http://www.thecustodyminefield.com/flapp/parentalresponsibility.html
)
You're welcome.....
As I said in my first reply, beyond rights of Parental Responsibility (which includes education and medical matters) you don't really have any rights to contact.
Of course, morally this is not right. However, legally, in the absence of a court order, you have no rights to contact in terms of your ex having comply.
In the eyes of the family court, the rights to contact belong to the child. This can be ordered by a court and your ex would have to comply.
In the short term, until you apply for an order, your ex does not have to agree to any requests for contact.
Thanks for the clarification Yoda. I pressume all your points apply equally to my ex wife too? Does she have any greater rights than me because our child currently lives with her? This living arrangement has not been agreed through any order; its only the result of circumstance i.e. I had to leave the family home.
I'm not sure what you're asking to be honest. I've explained twice and THL has explained in further depth.
You both have PR which gives you an equal say in matters to pertaining to this and the link THL kindly provided gives details of PR in more depth.
Your child has rights to a meaningful relationship with both of you and the court can facilitate that by making an order.
In the absence of a court order, if a resident parent refuses to allow or increase contact with the non-resident parent then there is nothing you can do other than mediate and apply to court.
Except for PR, your ex wife doesn't have any 'rights', neither do you, but without an order there is nothing to stop her not allowing contact.
If she won't allow to contact to increase, I would focus your energy on setting up mediation and making a court application if necessary. There really is nothing anyone other than a judge can do if your ex wife is refusing. Courts are not interested in your rights or that of your ex wife, they are concerned with the rights of the child to have a relationship with both of their parents.
Thanks for the clarification Yoda. I pressume all your points apply equally to my ex wife too? Does she have any greater rights than me because our child currently lives with her? This living arrangement has not been agreed through any order; its only the result of circumstance i.e. I had to leave the family home.
Hi again
Just to clarify - all that Yoda said is exactly correct. My contribution was to emphasise that you should be thinking in terms of "upholding the child's rights" and making sure both parents do this, and treat their responsibilities (parental responsibilities) fairly and honestly.
You ex does not have greater rights. Again, from the child's perspective - a child has a right to a stable, safe home environment - which is why courts are unwilling to consider removal from a parental home (or a change in where the child lives) frivolously. Any parent who has day-to-day care of a child will be able to appeal to the "interests of the child" to determine or vary certain actions (but these must always be considered along with the impact on the child) - so it may seem that this parent has more "rights" - but as I hope you can now see - this is the wrong way to think about the situation.
Along with PR - you should check out the "welfare checklist" (section 1(3) a) to g) ) by which most family courts/judges operate.
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