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Child arrangements problem

sylwek1990

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Hello. I hope you can help me with my case. I have problem with my ex as she wants to cut my days with my son. He is 4 years old. Until now we shared care as I work 14 days per month so I can take care of my son. Now she wants to cut from 16 days to only 4 days and basically that 4 days is during 2 weekends. She do that without reason you saying that's no good to my son stay with me all that days. Probably she wants money and her new partner giver her some clues. I feel really bad as my son spend with me
more time that with her from when his born. I think she is unhappy and jealous because my son says that wants stay with me when she picking him in my house and that's very strange for me. Some times I think that something bad happening in my ex house. The other day by suprise we met in supermarket and my son when saw me just start cry and run to me and said that is going with me even close inside my car later saying I'm not going with my mum. I felt really sad and I know he suffer because he can't spend so many day like before she cut . We had that agreement verbal so i have nothing basically and she claim benefits so is basically primary career. My shift pattern in work is like this: 4 in 3 off, 3 in 2 off, 3 in 3 off, 4 in 7 off. I want to apply to court as she don't want change her mind. Next week I have chat with mediation because they told me I can't apply to court without. There is more to say but maybe in the next message. I really need your help. Do I have any chance to win 50/50 custody in court?? Or at least anything better than only 4 days a month?? I hope yes because I don't think to just give up and see my son like this and do what my ex says as is no good for my son.
 
Yes you will get more than 4 days a month. And you have a chance of having 50/50 reinstated. Try mediation first. Before you can apply to court the only legal requirement is to have had a MIAM (the first mediation appointment on your own when they discuss mediation with you and you tell them the situation). They then invite your ex to the next appointment. If she won't go or doesn't turn up, they sign you off and give you a form which forms part of the court application. You could speed things up again by asking her if she'll have mediation with you "to try and reach an agreement for a parenting plan" for the future. Put it like that, because otherwise she may guess that you intend to apply to court - she may know mediation is a route to court. So put it to her that you want to sort things out and think a mediator might help you reach agreements.

But do it in writing - eg a text. Even if you speak to her first as well. From now on have written records of everything - diary notes as to any conversations had, times and dates you see your son, what you did and try to confirm everything agreed either by text or email - and keep those texts or emails polite and civil and nothing personal (you might want to use them in court as evidence).

Anyway if you ask her and she says no to mediation, then there is the option to just ask the mediator to sign you off at the first appointment (just take the form with you - it's a page out of the C100 application form which you can download). The mediator may be reluctant to do that even if you say you've asked your ex and she's refused because they like to try and invite them first. But if you just say no I want to be signed off then they should do it.

The advantage of that is, your ex doesn't know you've been for mediation. So won't get wind of you applying to court until you get a hearing date. Even if you've asked her. But ideally try mediation first so you can show the courts you've tried to sort it out.

It costs about £125 for the MIAM appointment and about the same for each session - each. Which is one reason ex's don't want to go usually - it means it'll cost them money and they feel they have no need of it as they're already doing what they want.

I've had something similar in the past - I had plenty of time when I was useful as a babysitter but her life changed and she wanted to change things to suit herself.

You simply tell the court, when you apply, that you have been sharing the care 50/50 for x months (or years) and Mrs Ex has unilaterally changed that and it's affecting your son who is used to seeing you. By 4 days a month I assume she means every other week-end.

Assume your son is starting school in September? This will be one reason she's doing it now. You can apply for an order that covers now and after he starts school so it's long standing.

It's hell when you can't be with your child. 50.50 when he's at school would be two consecutive midweek overnights to and from school plus every other week-end. And half school holidays.

Have you got anything at all that shows you've been having him half the time? Dates jotted on a calendar? Receipts for places you've been with him? Photographs? (They're usually dated). Food bill receipts? Showing itemised things like things kids eat, that kind of thing. Just in case she denies you ever had him half the time.
 
Thank you for your answer. It's really helpful. My son is already in reception and before that he was in nursery. I was taking him and picking him up in all my days off and even when a worked night shifts after I finish i took him to school then go sleep and pick him up in the afternoon. Any teacher can prove that. I do everything for me son he is always clean, I cook for him I worked like a chef some time before so it's not problem. I teach him many things and we used to visit lots of places. He loves to spend time with me. I live very close to my ex not even 10 minutes walking so there is no problem with shared care. I have lots of photos and probably some receipt and proves like I paid for nursery. There is another thing that happened 3 months ago and I don't like it. Me and my ex we both are from outside UK. I'm from Poland she is from Dominican Republic. So in the mid of December she went to her country with my son should be 3 weeks but she overstay and come back after 6 weeks she even lied that had COVID to stay longer. So my son lost 3 weeks of school and forgot half of English language and was really changed. He didn't want go to school crying every morning and even start do wee in his trouser so I was very unhappy with that as that completely not my son. Now he is all right. But I can't never have 3 weeks holiday with my son that's another thing that's make me unhappy. I don't wanna do always what she says. Can I say that in court or is better to not use it?
 
You definitely need a court order if mediation doesn't work. Good that you have all this to show how often you had your son with you, just in case it's needed. It probably won't be because you can say to Cafcass - just ask the school how often I was there to pick him up. Six weeks away is far too long for a child that age. But - in times of Covid all kinds of things happen and you may not be able to prove she was making that up. Or there may actually have been travel restrictions in place possibly.

She will have needed an exceptional reason not to be fined by the school for the absence, but maybe they just believed her and primary schools are not quite so strict about absence for holidays.

With a Child Arrangements order, a parent with a "lives with" order can leave the country for up to a month, but no longer without court permission. Without a court order then technically both parents need the consent of the other to go on holiday. If your ex has "lives with" then you would need her consent to go abroad (even if the court order designates holiday weeks with you). If it's "lives with both parents" either of you can go abroad on holiday without needing the consent of the other. And the "up to a month" has to be within your own court ordered time, or by agreement with the other parent if it's outside of that. Eg an exchange of dates.

I can imagine your son is distressed with this sudden change of routine when he has spent so much time with you so I would absolutely apply for a Child Arrangements order. You will still need to try mediation first but it sounds like it's not likely to work if she won't even agree to you taking him on holiday.

As you're both from countries outside the Uk then overseas holidays are presumably an important thing - but also possibly a risk causing anxiety to the other parent (works both ways) - eg fear they may leave the country and not come back. However, with the Child Arrangements order in place, if either of you did that it would be abduction and they could force the return of the child (depending which country it is). Which is a deterrant in itself and the parent would probably lose "residency" (ie the child only "live with" the other parent and "spend time with" the one who had tried to abduct.

There's also a situation where, if you think there is a risk she may suddenly leave the country, you can apply for a prohibited steps order to prevent that, in advance. But think carefully about that, as that could work both ways. Do you think she is likely to leave the Uk permanently? Some countries are outside the Uk jurisdiction, but I'm not sure which ones off the top of my head. Poland won't be but I don't know about the Dominican Republic - Invisible Intellectual might know about that.

My son also started regressing with wetting himself at that age after sudden changes (my ex moved house and changed his school) although I was still seeing him, but he did get upset about it. It will be worse if he also has the stress of a sudden change of routine with a parent and seeing them a lot less.

Start filling in your C100 now so it's ready to send as soon as you've had mediation - that's a time to act quickly as your ex may have a good idea you'll be applying to court if mediation doesn't work/happen and my view is - best to get in first. Then if she did accuse all sorts of reasons for reducing time, it's fairly clear it's retaliation.

As you'll be applying for "lives with both parents/shared care" then use the paper form, not the online one. The online application doesn't give the option to put home addresses. It just says - where does the child live" - and that means most Dads put the Mother's address - which automatically gives her a residence/lives with order! When there are no orders in place, neither of you has "residency" - you are equal - with equal parental responsibility. However Mum's behave as if they have sole residency sometimes and possession is 9/10ths of the law.

On the paper form you can put "Child lives with both parents" and put both addresses. Because that was the case until she unilaterally decided to change it. It's a bit more tedious as you need 3 copies of everything to take to court, but it's worth it to ensure you don't accidentally give her a residence order.

There's a guide under the tab above "Legal Resources" - how to complete the C100. It's not finished! But takes you part way through and ask on here if you're stuck about what box to tick on occasion. An important section is 5b where it asks why you're applying. The box isn't that big so I put "please see attached sheet" and type it out/print it out on A4 and attach that behind that page of the form. Which is fine. No more than a side of A4 ideally or it might not get read and hence needs wording carefully and to read easily and give a clear picture of the situation, the history and the issues. At the end of that you put what you ask the court to order. So you would say something like.

I respectfully request the court to make an order as follows:

For my son to live with both his parents, shared care, on a 2-2-5-5 basis. With every Wednesday and Thursday night with me, every Monday and Tuesday night with his Mother, every other week-end with each parent, and half the school holidays with each parent. I request that I retain child's passport but make it available to the Mother within 21 days of any booked holiday.

At a later stage in the process you can provide much more detail for what you actually want in an order. The more detailed, the better, to prevent ambiguities or loopholes. Eg times the days start and end, when school holiday periods start and end. And ideally a clause that says neither parent will change the child's school without the consent of both parents.

What that last bit does is help avoid any sudden long distance move - you get pre warning if child's school is told Mum has given notice. So you can then do an urgent application to prevent child being moved away. That is foresight as that is sometimes what an ex tries to do, once they are tied down by a court order.

So have your C100 filled out, photocopied, ready to take in/post as soon as you're signed off mediation. If you don't need it, fine - it's been a useful exercise in case you ever do need it.

The paper form is the second download on this page. You can type it on a computer, edit it and save it/re-edit it. Then when complete, print it out.

I think it's page 9 that is the form for the mediator to sign. So if you're sure your ex definitely won't go to mediation (if you've suggested it) - you could take that page from the form with you to mediation and ask to be signed off there and then and tell them it's urgent you get the application in as soon as possible as your son is under stress. They might still want you to wait a couple of weeks while they invite your ex and give her the opportunity to attend - but that's up to you. You can mention in your application that she declined to attend (if she does).


 
Thanks for your help. Lots of useful information for me as a I don't know anything about laws here in UK. For sure one of the reason she is like this is because she don't wanna live anymore in UK and go back to her country but she can't obviously becuase of our son. I want to fill that form just in case that I need it ready. On Tuesday I have mediation so I will pass them my ex contact details and I see what she does. But there is one more thing that I want you to ask. Because you already know my shift pattern but I didn't tell you day of week that I work so maybe that will change something I will split that in weeks
1st week: Tuesday, Wednesday, Thursday, Friday Working
Saturday, Sunday, Monday -off
Following 2nd week: Tuesday, Wednesday, Thursday working
Friday Saturday off
Sunday Monday working
Following 3rd week:
Tuesday Wednesday Thursday off
Friday Saturday Sunday Monday working
Following 4th week:
Tuesday Wednesday Thursday Friday Saturday Sunday Monday off
And after everything start from begining on Tuesday
I hope you can connect everything and understand :) as I move a bit the days of the week which normally is from Monday to Sunday but if you look you can connect everything. What do you think can a still get shared care as I had till now or not? Waiting for your answer
 
Hi :) I'll have a look at that later. Another Dad who started from scratch, got a shared care order with a shifting working pattern. His pattern was over two weeks and he ended up agreeing 6/14 at court. When you say your ex wants to leave but can't - what is stopping her?
 
I think I have something to say about that so she can't just leave the country and take my son like this because it's abduction but I'm not sure because you said she can so I'm confused a little bit. There is lot about her to say she doesn't like to work because is lazy so here is perfect life with universal credit plus she has partner so basically ripping of this country taking benefits and living with partner. I don't know how much you know Dominican Republic but is very poor country so the life is very difficult and with kids more. I just want focus on my son because that's what is important for me. Anyway I forgot to say one more important thing that's probably stop her from go, as our divorce is in process not here but in Dominican Republic as we married over there and we already signed both like pre divorce act and agree most of thing including shared custody of our son. But obviously I don't have yet original divorce act but I have copy of what we signed. Do you think that document would be big help for me in court?? Is in Spanish language so I have to translate in case I need it
 
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Yes of course you'd have a say and it sounds ok that you're on speaking terms and you feel she probably wouldn't take him away from you. But - she has reduced things a lot already.

It does sound a bit complicated so you need to be careful to cover everything. It sounds like you have parental rights in the Dominican Republic when you divorce, via the pre divorce act. Whether those would count in the Uk, I wouldn't know - you'd need legal advice. Was your son born in the Uk? If he was then it would be abduction if she moved him out of the Uk without your permission or the court's permission. So if she did go back to the Dominican republic and there was no possible court jurisdiction via uk law, then the only way you'd see him is if you also went to live in the Dominican republic (I would think - but as I say that would need legal advice)

I only mentioned it because it's a worse case scenario so always best to know what the worse thing that can happen could be and pre-empt that IMO. ie worst case scenario is Ex doing a moonlight flit abroad with a child and no UK jurisdiction in the DR. But it sounds like you think that's unlikely to happen, at the moment, so it's not so urgent to have a prohibited steps order. What that would do is actually keep her passport if there was a risk she could abduct the child out of the Uk. But you'd need some evidence to show it was a risk. I was just slightly concerned when you said she'd taken him abroad for 6 weeks - that she might be contemplating moving back there.

It's something to be aware of though because things change - she might break up with her partner and emotions overrule practicalities and finances and just want to go back one day.
 
Another thing to check maybe - although you were married in the DR. Are you also a citizen of the DR? Because if not I would check whether the pre-divorce law applies to you if you're not a DR citizen.
 
Hi Ash. Thank you for your answer. Yes my son born in UK. My son has only Polish nationality and Polish passport I don't know if that is some help. No I'm not DR citizen I just married over there to bring my ex here to UK. I will check that if DR is under UK jurisdiction as a you said always better to be prepared. I don't know if the pre divorce will help me but it's only about that we have some agreement to show that in court. When I have the original divorce act I go to my country and exchange for one that is valid in Europe Union so should be valid here. But that will be after I take her to court so we will have already arrangement here. I want to do everything as soon as possible because I don't wanna see my son like this and me aswell. It's very difficult to do everything my ex say and no any power to say that my son stay today with me and that would make us both happy and would be good for my son and his mental health. Another thing is I don't know how they treat him in me ex house. She always get angry when you say that she is doing something wrong just don't accept any critics. We split because she beat me and one day she throw knife on me and I said to her that has mental problems and was just enough for me. I'm stupid I know I never went to police everybody repeat me that but sometimes you just don't wanna be bad. But maybe I focus on my case. Did you look on my message from yesterday with days that I work. In your opinion can I get all my day off with my son in shared custody or you propose something else. I would be happiest father to have him all my days off. On Tuesday I have mediation so I should say everything that I said here? Any other advice?
 
I'll check out the shift pattern when I get chance :) I'm sure there'll be a way round things. So if you left because your ex was violent, do you think she is safe to look after your son? Or do you think she was only that way with you - ie a relationship thing? Or even a deliberate thing to force a separation for some reason? It's normal to worry about your son's care when you don't see him enough but also concerning if you think he might not be being treated properly. You mentioned the school knowing you. Could you write confidentially to the Headteacher - might be an idea.

Don't say anything bad about your ex or it could look bad for you (Cafcass ask school for feedback and might see the email) so when writing it be aware that it needs to be carefully worded. Maybe something like

"I was wondering if you could let me know how x is getting on at school at the moment, as he is currently under some stress, partly due to disagreement between his Mother and myself since his Mother now has a new partner and has reduced his time with me. As a result I am currently applying to the family courts to resolve this matter, but in the meantime, I am aware that x has begun wetting himself and am obviously worried about him if I don't see him often.

I would be very grateful if you could let me know if you have any concerns about x and would be very grateful for any support the school can offer him at this uncertain and stressful time for him.

Do please contact me if you wish to discuss the matter further or I am happy to come to the school to discuss.

Yours sincerely, you

Address it to the Headteacher by name, but you can email it - but mark the email Private and Confidential - then name of your son in the message header.

This could do a few things. Firstly the school will look out in particular to see if your son is having any problems behaviour wise and note any concerns. If they do have concerns they will contact social services. Which can be better than you doing it, and be taken more seriously. It'll also mean they could put some extra support in place - even if it's just informing his teachers he is under stress, so he doesn't get into trouble if he misbehaves at school or has any behavioural problems.

I've done this myself and the school were very good at looking out for my son. The headteacher actually told me he seemed absolutely fine and happy at school and said sometimes this happens because they're away from the stresses of separated parent issues. But in this situation it's different as your son will be missing you. And I know when my son was struggling that then left him susceptible to being bullied because he was unhappy and it showed. Thankfully there are nice kids as well who help.
 
Well I'm thinking many times that's my son need to be unhappy. It just can't no affect him if he no seeing me. My son used to say that they hit him my ex or even her partner. But now he looks like scared. When my ex picking my son in my house he hug my and say he don't wanna go , he wanna stay with me but that inside my house. When we are outside and my ex is close he looks like scared dosent wanna say anything even open his mouth. Couple a weeks ago yes he done that in the supermarket because he looks like he was desperate to go with me he just cried and run to me, didn't care what my ex said to him she was with her partner. There was another situation just probably a week ago he was playing in my flat and he had juice and by mistake he just hit the bottle and everything finished on the carpet so I said don't worry I clean it but when I stand up he covered his face like I was gonna beat him and that was very strange for me and make me thing that maybe my ex treat him bad in her house. To the question about my ex is not only in relationship because from what I know in her job they send her twice home because she treat somebody bad in her work. She can't control herself when she is angry and my family saw that so it's just not my words.
 
Thank you. One more question I know that I need Miam which cost around 100£ and 230£ to put the case in court. There is any more money to pay after that oh that's it? I'm asking because I'm saving to buy my own house next year so I wish to know how much I will need to spend.
 
Depends. If you self rep then no - apart from photocopying, stamps, travel etc. If you use a lawyer then yes. But see how things go after the Cafcass letter. As to whether it's going to be fairly straightforward or not. Plenty of Dads do self rep and if you're worried about language aspects between either of you and communication issues, the courts can provide an interpreter so both can speak in a native language - although maybe that isn't an issue for you. If it gets more complicated - eg your ex makes allegations about you. Then you might need some help. We can help on here and you can get a half hour's free legal advice along the way. Although if you can afford it, it can be good to have a direct access barrister for final hearing to get the best result - because there is cross examination at final hearing. It's wrong we have to find money to see our kids, but it can save money and heartache later on if you get a good order from the outset, rather than things not go so well at final hearing and having to go back to court again to get it sorted out.
 
Thank you Ash. I really appreciate your help. So difficult to be in other country but always you can find people like you so good and helpful. I can spend whatever is necessary. I save another year. There's no money that can replace my son and all the time I can spend with him. I think I can defend myself with my English. I know English, Spanish, German and Polish so sometimes isn't easy speak all of them but I'm happy you can understand me. Me ex just told me today that me son is behind as she was on the parents meetings so decided to write to school. Tomorrow after mediation I will do that as they don't know anything and my son is suffering.
 
I should start completing your C100 application now so it's all ready to take in after the mediation and avoid delays. It can take a bit of time over getting the wording right for the application.

If you check the legal resources tab at the top, there's a guide to completing the C100 form and the link to the form is in that.

Your schedule does sound complicated! How did it work before she reduced the time then?

Normally you'd be looking at the same two midweek schoolnights each week (eg Monday and Tuesday night - every Monday from school, drop back at school Tuesday morning, pick up Tuesday after school, drop back Wednesday morning), Plus every alternate week-end from Friday after school to Monday morning.

The schedule could work so your every other week-end doesn't fall on the week-end you work. Schools also have breakfast clubs and after school clubs so you can drop them off early or pick them up later - would that work for you?

However, a midweek schedule could be tailored to work around your work pattern if you explain this and propose something that sounds reasonable. So you could have a longer period when you have what sounds like basically the week off!

So starting with week 4 - you are off work Tuesday to Tuesday - so you could do say Wednesday through to Monday school drop off (5 nights) that week. So your every other week-end would be weeks 2 and 4 of your schedule. But week 2 of your schedule you're off Friday and Saturday but working Sunday. But week 1 you have the whole week-end off.

So going by your 4 week schedule you could have

Week 1 Sunday 4 pm, Monday night through to school drop off Tuesday (2 nights)
Week 2 Sunday 4pm, Monday night through to school drop off Tuesday (2 nights) and Friday from school through to Sunday morning drop off at Mums (2 nights)
Week 3 Tuesday, Wednesday and Thursday nights (3 nights)
Week 4 Wednesday through to Monday morning (5 nights)

That works out at 14 nights over 4 weeks - the equivalent of 7 nights out of fourteen a fortnight. It keeps to the every other week-end schedule for your ex but one of your week-ends is shorter, just Friday and Saturday and one is a 5 night longer week-end period.

Does that seem to work with your schedule? The downside is you go a whole week between the Sunday night to Tuesday morning of week 1 and the following Sunday night to Tuesday morning in week 2. But then have a week-end followed by one night at Mums and then 3 nights with you. Then almost another week without seeing him until the following Wednesday when you have 5 nights.

It doesn't quite work out - I've got confused.

I'll look again later! Do you have early starts for work or can you drop off at school in the morning (say 8am for breakfast club?).
 
Is there any way you could set out your rota starting Mondays each week? So the Mondays start the rota week rather than fall at the end? Then I can maybe work something out to a pattern.

Also could you set it out so week 4 above is the first week of the four week schedule.
 
Ok I've had another look. Easier if we keep your week 4 as week 1 of the schedule:

So
Week 1 (your week 4 above): Wednesday from School through to Monday morning school drop off (5 nights)
Week 2 (your week 1 above): Friday from school through to Monday morning. (3 nights)
Week 3 (your week 2 above): Thursday from school through to Friday morning school drop off (what time do you finish work that Thursday?) - 1 night
Week 4 (your week 3 above): Tuesday from school through to Friday morning school drop off (3 nights).

This is only 6 nights a fortnight instead of 7 so it's near 50/50.
And instead of every other week-end, it means you have your son two consecutive week-ends, then your ex has your son two consecutive week-ends and one week you have 1 overnight (but no long gap to the next time you see him) but another week you have 3 consecutive overnights when you're off work.

The other option could be week on week off with each parent - but that wouldn't work unless you can do school drop offs and collections on the days you're working. Do you work regular hours on those days?
 
I work 12 hours shift so pick up or take it to school when I work it's not possible for me at the moment. It's complicated because I work 7 nights shifts and 7 day shifts . I had my son when I was off from work but not anymore. I have another idea probably if I ask my boss to work 4 days in 4 days off rota they will approve that. That probably would be the best to do. What do you think? But if I go to court obviously I'm not working that shift pattern at the moment so I don't know what would be happend.
 
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