Residency Orders

(32 Posts)
SnowWhiteWinter Fri 07-Dec-12 21:30:46

Thought I'd start a new thread as the pre school issue in my last one has been pretty much resolved (sob) and the thread moved on to other things...

So, DP's solicitor has advised him to apply for shared residency but that he needs to have a think if he wants to apply for 50/50 or a greater share of residency. I'm sure loads of you have been through residency cases and have residency orders - so I'd love to pick your brains. There's so much he didn't discuss with the solicitor at this stage - £200+ an hour I told him to get in and talk fast smile She's just talked him through the basics.

He would obviously love to have the DSD's more than 50% of the time- until recently we had them perhaps 80% of the time. But equally he understand they need to have lots of time with their mum to have a meaningful relationship.

So my questions are:

-Is there any real benefit to having a shared residence order 50/50 care? In your opinion was it worth the stress, worry and cost?

-If he made an application to court for shared residency how long would it likely be before the court date is set?

- Will it look bad on him if he proposes we have more than 50% residency (we have valid reasons, well, reasons we believe to be valid) will it look to a judge that he is trying to "take away" time with their mother and will him asking for more than 50% make a judge consider giving him less than 50%. (Their mum has stated clearly she only wants 50% but our solicitor warned us this often happens and at court the parent who previously only wanted 50% asks for more when they realize the other parent wants more.

Thank you and sorry to be abusing this forum and asking so many questions - we have lots of issues and having found this forum I feel like it would be silly not to ask for 1st hand advice here!

Snow

NotaDisneyMum Fri 07-Dec-12 23:26:13

Courts operate on the basis of no order, so if your DP and his ex have a care arrangement in place which they have both agreed to, the court won't get involved.

What is it that your DP has proposed regarding contact/care that his ex disagrees with? That will be the basis of what the court will decide upon.

My DP applied for shared residency of his DCs after his ex withheld contact. He had always been an active part of their life as their Mum worked shifts while he was flexible around that to care for them as babies and young DCs.

Once she knew that a court application was submitted, his ex conceded to EOW contact, and DP accepted, but continued with the application saying he wanted more.
By the time the court made their decision several months later, the DCs were settled in an EOW arrangement and that is what the court ordered.

NotaDisneyMum Fri 07-Dec-12 23:42:28

snow just a thought - if you do have PR, then you'll probably need to be represented in court separately from your DP - I think that everyone with PR has to be involved in a contact/residency case - so you'll either need your own solicitor or to represent yourself.

Your DPs solicitor can't represent you and your DP in the same family court hearing - neither can anyone in the same legal practice.

Xalla Sat 08-Dec-12 07:32:10

Tell your DP to join Families Need Fathers Snow. There is excellent legal advice avaiable there. My DH learned a lot from both their forum and attending meetings.

Also access a website called "The Custody Minefield" - they have an Ebook you can download regarding Shared Residency.

SRO's can be ordered via consent i.e. Mum can agree to it at mediation. Like Disney says, there's a no order principle whereby the court can decide it's not in the children's interests for either parent to have residency though.

What concerns me in your case is that SRO's can be ordered where one party is seen as overbearing or attempting to exercise control over the other parent. My DH's ex used to threaten to withold contact if DH didn't meet various condtions she set, she got my DSD christened without my DH's agreement, she deliberately failed to pass on letters from school etc. My DH was advised it was far more likely for him to achieve an SRO because of this type of behaviour. I think it would be fairly easy for your DP's ex to show that your DP has exhibited such behaviour and I can see a court being less keen to award him sole residency for such reasons. Unless of course you plan on claiming Mum is unfit in which case there will almost certainly be an extensive investigation by Cafcass - are you ready for that?

In my DH's case it didn't reach court. DH and his ex managed to come to an understanding and they share parenting equally now. This was doubtlessly the best outcome for my DSD (and our finances wink)

MagicLlama Sat 08-Dec-12 11:19:45

Well what reasons did the solicitor give for recommending applying for shared residency?

Personally

- There is no benefit to a shared residence order 50/50 where both parties agree with the contact, and respect the other parents time and parent making decisions.
Generally going to court causes friction, resentment, and if there is no arguement about contact it is very rarely worth it.

- Depending on your court, an initial directions hearing can take anything from 4 - 8 weeks to come through. If ex contests the order, thenno decisions will be made at that point, a further date will be set, and any reports or information required by the court will be asked for. Further directions are usually set for 3 months away, but if including a CAFCASS report (which it will if you cite welfare concerns) can end up with the hearing being delayed by practically any length of time. Around here, a basic wishes and feelings report from CAFCASS takes 8 months!

- It will depend on your reasons. I have already said that my friend lost his 50/50 to essentiall become an EOW dad because of what was perceived to be his unreasonable behaviour.
It will certainly result in ex contesting the application, if as you say she definately wants 50/50.
It might result in her requesting more time. She could easily argue that she wanted to be the primary carer, but believed that 50/50 was best for the girls and the fairest, but if there is going to be a primary carer, then she would be better placed to do so.

pinguthepenguin Sat 08-Dec-12 11:31:03

I agree with magic - your DP needs to have clear reasons about why he wants it and what it thinks it will achieve.

PS- posters are still asking questions on your other thread which you haven't answered about PR. It's relevant to this question as well- so are you really sure you have it?

allnewtaketwo Sun 09-Dec-12 20:47:50

Snow-sorry if I missed one of your posts, but did you DP manage to find the paperwork in the loft?

Spero Sun 09-Dec-12 20:55:26

You and your partner can have the same lawyer if you are running the same case. You only have separate lawyers if there is a risk of a conflict between the two of you.

To ask what is the 'benefit' of an order for shared residence is not really a helpful question. It depends entirely on the circumstances of each individual child.

The general principles of law is that any decision must have the child's welfare as the paramount consideration, I.e. This isn't about wha parents want but what is best for the child. Children are entitled to a relationship with both parents, but a 'relationship' can't be defined by 50% of availalble time. In my experience it is very rare to find parenting split equally after separation. Vast majority of children will have a home with one parent and spend some over nights with other parent.

You don't say how old the children are, distances of your respective homes from their schools, so it is not easy to say what would suit them best here.

PoppyPrincess Mon 10-Dec-12 00:04:38

I suspect that what snow really trying to find out is whether her and DP can have the right to make final decisions over things. I think that is their main concern at the moment. They are happy with the girls spending 50% of their time with mum as long as OP and DP get to keep their control over them. Am I right?

Spero Mon 10-Dec-12 00:20:37

They won't get the right to make 'final' decisions unless they get a special guardianship order, which I can't see being appropriate in this kind of situation. The children's mum has PR too - every person with PR has to consult with the others, unless there is a care order or SGO. Her right to be consulted on every major decision in child's life is in no way related to the amount of time she spends with them.

You don't get to 'win' or be in control just because children spend more than 50% of their time with you. I think shared residence orders are complete red herring and usually totally irrelevant to what is actually going on in children's lives.

PoppyPrincess Mon 10-Dec-12 13:39:27

But if both parents want different things for the child then they can't both win so sometimes there needs to be a parent who has the final say.
If one parent wants the child to go to one school and the other parent wants them to go to another school and neither will budge on their decision then who 'wins'?
This is the kind of problem that snow is now facing, they've let the mother now have the girls 50% of the time but they don't like that she is beginning to have a say on which preschool she goes to.

sanityseeker75 Mon 10-Dec-12 13:42:35

Snow

Have I missed a thread - did you check out the PR?

Spero Mon 10-Dec-12 13:43:17

If parents can't agree they have to g to court and a judge will decide for them. If both parents have PR it is unlawful for one to impose their decision on the other. The only thing you can do is take you child out of the jurisdiction for 28 days without getting permission but only if you also have a residence order.

Spero Mon 10-Dec-12 13:45:11

Of course the mother is allowed a say in the education her daughter is getting! That is one of the fundamental parenting issues.

Op and her partner need to respect this. If those with PR can't agree, or can't mediate, have to go t court I am afraid.

Spero Mon 10-Dec-12 13:46:44

Keep re-reading your post princess and new things jump out at me every time! So the op 'lets' this mother see her own child??

Boggle. I think this op and her partner need to adjust their attitudes quite swiftly.

PoppyPrincess Mon 10-Dec-12 14:50:23

Spero have a read of snows other threads

Spero Mon 10-Dec-12 15:08:24

Sorry, I haven't seen any other threads. just talking about general principles here. You don't 'let' the other parent see a child you don't have a 'final' say on fundamental matters such as education and health.

I am not sure what the other threads will reveal that could in any way impact on these basic legal principles.

allnewtaketwo Mon 10-Dec-12 15:58:46

Spero - you are right of course.

But that assumes that people act logically and rationally. Try telling my DSSs mother that she doesn't have more rights than DH. Or that she doesn't have the final say on anything. And I think this situation is fairly common.

What of course (thankfully!) isn't so common is to hear this particular OP's story. General principles have well and truly left the building, so to speak.

It now seems that, despite being 100% certain she had PR, she has now gone extremely quiet after her DP being due to "find the paperwork" in the loft. It seems he didn't find what the OP was expecting.

Spero Mon 10-Dec-12 16:53:16

Loving the 'of course' - your cheque is in the post.

I know people don't act rationally when it comes to their children but that doesn't change the legal position which they do at least need to acknowledge! I hate this way that children are treated like some top trumps game - it's all about power and control for some people with apparently little or no thought about how this impacts on the children.

NotaDisneyMum Mon 10-Dec-12 17:08:50

spero in the OPs case, acknowledging the legal position is not something she has been prepared to do - even when the unanimous consensus was that only a court could have awarded her PR of her DPs DCs (she and her DP are not married) she continued to assert that she does and that she had no reason to lie about it.

In the face of such conviction, the needs of the DCs are often sidelined.

Spero Mon 10-Dec-12 17:36:53

I agree, I cant see anyway a step parent gets PR without an order, married or not.

but is such a red herring! The mum still has her own PR so it's not a case of two beats one. All holders of PR have to agree, unless SGO or care order.

Poor children.

allnewtaketwo Mon 10-Dec-12 18:16:05

I suspect in this case the dog has eaten the paperwork. It doesn't look like the OP is coming back

elliebellys Mon 10-Dec-12 21:36:13

Nope she probably wont,but she has posted on other topics today.quigte an ironic post really.

allnewtaketwo Mon 10-Dec-12 22:18:57

How bizarre!

PoppyPrincess Mon 10-Dec-12 22:21:48

spero please don't think that it's MY opinion that a parent 'lets' the parent see the child or that they should get 'the final say' over decisions, this isn't what I think should be the way things should be but I think that is how snow sees it going off what has been said on the other threads.

Yes both parents should have equal rights but in reality they don't. Unfortunately we live in a country where the law does very little about parents who don't let the other parent see their children...I know as its happening to DP at the mo. she won't even let him see them on Xmas day but its the kids I feel sorry though as she's not letting them see him. It's so sad sad

I think the OP likes having her DSD's as her own and isn't liking the fact that their mum has come back in their lives and she now feels like she's losing them and yes she wants control of them.

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