ask a lawyer
ask a lawyer | help and info
We invited you to write in with questions for our family lawyers about child residence and contact following divorce or separation. Here we have published a selection of these questions together with the replies from our legal experts. All names have been changed.
At the end of this feature, we've listed further sources of help and information for those of you who we weren't able to reply to individually, and for anyone seeking further information on this subject.
- Steven wants advice about his rights as a recently separated unmarried father.
- Ben is considering a joint residency order to formalise his existing arrangements with his ex-wife.
- Darren wants to avoid going to the courts and would like to know what alternatives are available.
- June is worried about the welfare of her grandchildren following the breakdown of her son's relationship.
- Mark is concerned about disruption to his son's education and wants to know how to resolve this.
- Jon is worried because his ex-partner says she will be emigrating to Australia with his son.
- Martin's daughter says she wants to come and live with him and he wants to what he can do about this.
- Doug wants to know why allegations of violence can be made without any evidence.
Channel 4 takes no responsibility for the advice given here as individual circumstances differ so much. You are advised to ensure that you take timely and appropriate legal advice for yourself based on your particular circumstances.
Q: As a recently separated unmarried father, please inform me of my rights. My ex-partner does not want me in my two children's lives. She is seeing someone else and there is no communication between us. She stops me seeing my children and then changes her mind, when it suits her. Where do I stand regarding my two children, other than going for a parental rights order with which she will not comply?
Steven
our Family Lawyer replies:
You can apply to the court for a defined contact order. The order will set out a pattern of contact and hopefully will help in relation to seeing the children regularly. The order can be quite specific as to days and times when contact is due to take place. You should seek the advice of a solicitor who will be able to help with your application.
Q: As a man I am fortunate to have my child living with me 50 per cent of the time by mutual consent – this has been the case for three years. However, I feel that I'm still being treated as a second rate parent by the school and the health service. I wonder whether I should ask the court to formally grant a joint residency order but my solicitor advises against this as the courts have a non-intervention policy. Recently, my former wife changed our child's doctor without reference to me. It seems anything could happen if she so wished, even an end to the joint residency. Should I ask the court for the joint residency order anyway, if only to stabilise our existing arrangements?
Ben
our Family Lawyer replies:
Frustrating as it is for you to feel treated as a second rate parent your solicitor is correct and if you have an agreement with the mother of your children the courts will be loathe to intervene and grant you a joint residence order. I suggest you take a practical approach and write to the doctors and the school setting out your position and requiring that they advise you about all matters relating to your child, which they are obliged to do. If they have your full address and contact details there will then be no excuse for these organisations not to contact you directly.
Q: After a lengthy court battle I received a court order in favour of twice-a-week contact with my daughter. As my daughter got older she started pre-school and I lost the weekday contact, but still kept the Saturday contact as normal. I had a CAFCASS welfare report that was in favour of me continuing to see my daughter. A condition of my contact was that my mother would help supervise the contact at her home. I do feel I need time with my daughter at my home, as she's now four years old. I still provide for my girl and have had some overnight stays. I have bonded very well with her and for her to come to my place would be very nice. My ex has had a number of relationships since we separated and I do feel it confuses my daughter. Please advise me if there is a better solution to the courts as I have used them in the past. We do meet occasionally at a neutral venue to discuss my daughter and both get to bring up our issues, if I can get a word in. My next meeting is next month. Obviously I don't fancy taking it to the courts, but would do this if necessary. What other avenues are there?
Darren
our Family Lawyer replies:
It is very encouraging to see that you do meet regularly with your former partner. If however you feel that you find it difficult to discuss things with her without any assistance from a third party then I would suggest that you contact a local mediation service to refer yourself and your ex-partner to them to see whether they can assist with organising a meeting on neutral territory. Your former partner doesn't have to agree to this, however, as it is a voluntary process. To find out about mediators in your area you could try the UK College of Family Mediators (see help and info, below). Please however note that any agreement reached in mediation is not legally binding.
You can also seek out some collaborative lawyers if you wish to have a solicitor present with you and organise a meeting between your former partner and your respective solicitors. This will not involve court proceedings but again she would have to be receptive to the idea. See help and info for information on finding a collaborative lawyer.
Q: After a very difficult break up of my son's relationship, he has been discredited in the court by the telling of dreadful lies, none of which were substantiated. My son has given up with the courts and instead sends regular cards and gifts, which the mother has agreed to. I've tried to seek advice as to my own position on any contact matters. I also send regular cards and little gifts but I was advised not to seek contact through the courts as this might get the mother's back up. From the birth of my grandchildren I've played an active role in bringing them up with love and support. Both my son and I are now very concerned for their welfare and feel totally helpless. I am very concerned that we are being denied contact to them – we're worried about what is happening to them. No one will inform my son of his true rights. Does my son have any parental responsibility (they were not married)? Are the children's needs really being taken into consideration in this situation?
June
our Family Lawyer replies:
Since your son was not married to the mother of his children he does not have automatic parental responsibility and would need to apply to the court to obtain the same unless of course his ex-partner is willing to enter into a parental responsibility agreement. I note that you say he has given up on the courts. Do you think that his ex-partner would attend mediation to try and discuss these matters with him in an attempt to resolve issues?
As far as your position is concerned as a grandparent you can apply to the court for contact with your grandchildren. However, as you are not a parent, you would first have to apply for leave of the court (permission) to make this application for contact. The first hearing therefore is like a 'mini' hearing where, if there are any objections to your main application, these will be aired in the court and the courts will decide whether you can proceed with your application. Again, however, you could attempt mediation with the mother and, if you are eligible, legal funding is available.
Q: What rights does a divorced father have in determining how his child's education is formed? My ex-wife has a history of mental illness and as a result is totally unpredictable, even though the Family Court saw fit to grant her a residence order for our ten-year-old son. He's been moved around seven different schools after my ex-wife found fault with all of them. I am wondering whether, as his father, I can put a stop to this total disruption of his education. At present I am not consulted as to his many moves around different schools. What rights does a divorced father have in a situation like this?
Mark
our Family Lawyer replies:
I do not know if you have tried mediation with your wife or going to a collaborative lawyer to see if matters can be resolved out of the court forum. If not your answer is to seek what is called a Specific Issue Order. You have the right to make an application to the court for a Specific Issue Order dealing with your child's education. The question of his education will then be investigated and a decision made as to which school he should attend. You should speak to a solicitor in the first place for advice about making this application.
Q: My ex-partner has informed me of her intention to emigrate to Australia with our 12-year-old son next year. We have been apart since my son was three years old. I have contact with him every other weekend. My son has a form of autism called Aspergers and I am worried how he will cope in Australia and that I will never see him again. My relationship with his mum is not very amicable. Can you advise me on my best course of action?
Jon
our Family Lawyer replies:
Unless you can discuss matters directly with your former partner or discuss the details of her intended emigration to Australia, then your remedy is to apply to the court for a Prohibited Steps Order and a Specific Issue Order. A Prohibited Steps Order is an order that will prohibit your ex-partner from removing your son from the jurisdiction of the English court. A Specific Issue Order is an order that relates to one specific issue regarding your child's welfare, in this case whether he should leave the country. His welfare will be paramount and any investigations will take into account issues such as why she feels that Australia is a better place for him to live than England, what arrangements she has made and how disruptive it will be for him to change jurisdictions.
Q: My daughter will be seven next year. She has lived with her mother since she was three months, following an extremely acrimonious split. I sued for a contact order and parental responsibility and won. We see each other for three weeks out of four and she stays for one weekend per month, plus three to four weeks holiday per year. Ever since my daughter could speak she has asked me to let her come and live with me, and cried each time I returned her to her mother. I've asked her if she has told mummy about this – her reply was "No, she would go crazy". She recently asked me what I'm doing about it and when can she go to court to tell them that she wants to live with me. My partner and my daughter are very close. I have a steady job, three-bedroom house with garden and a steady relationship with my partner. Her mother changes her boyfriends frequently, has a council flat, a motorbike and a criminal record. Please advise me of my legal position, chances of custody of my daughter and possible course of action.
Martin
our Family Lawyer replies:
Have you tried speaking to your former partner in relation to this? I realise that it is a very difficult subject. It may be that you should approach it on the basis that initially you could extend your contact with your daughter. However if that is impossible then your only course of action is to make an application to the court to change the residence. There will no doubt be a CAFCASS report drawn up during the court proceedings. You will have to show to the court why it is that your daughter does not wish to live any longer with her mother who has been her main carer since she was born. Her wishes are one of the things that the court will look at. Of course her welfare is of paramount importance and simply because she states that she wants to live with you it is not a forgone conclusion that you will obtain residence.
Q: I am currently fighting for access to my two sons. My ex-wife made a lot of false allegations in court about domestic violence and abusive behaviour. The judge believed most of the allegations based solely on her say-so without a shred of evidence. Why is it I can I be labelled as violent and abusive when I have no criminal record whatsoever and my ex-wife cannot supply one witness against me or any medical evidence or any police report? The hearing was called "A finding of facts hearing," but I feel it should be called "A finding of assumptions based on probability hearing" as the judge's own statement said that I was guilty of violence "based on probability." In my job, if I arrest someone for shoplifting I can't say that it's because they "probably" stole the item. I have to be 100 per cent certain of my facts. How can family law operate in this way?
Doug
our Family Lawyer replies:
It is of course extremely upsetting and frustrating for you to be faced with what you consider are false allegations about your alleged domestic violence and abusive behaviour. However because the case is in the civil court and not a criminal matter, the judge must make his or her decision on the "balance of probabilities." That is the test. In your job are dealing with criminal matters and that is a different test than a civil test. In the criminal courts the judges are concerned whether there is a verdict that is beyond reasonable doubt. You say there was not a shred of evidence. However you and your ex-wife gave verbal evidence to the court and that is what the judge considered.
(October 2004)
Read on for details of relevant organisations, websites and reading.
