Residence 'disagreement'

[ConcernedDad999]

Hi All,

I'm new to the forum and also a relative newbie to dealing with child custody from a legal standpoint so I apologise in advance for my ignorance.  I have been separated for almost 3 years now - following the relationship breakdown I've had fortnightly contact with my children now 13 & 14.  The 14-year-old non-biological daughter is having mental health issues and as a result no longer wants to visit.  The ex moved with both the kids to a place that is roughly a two-hour drive away about a year ago - I believe this is one of the main reasons that the daughter no longer wants to visit.  As an aside, I considered a PSO at the time of the move but was told (in no uncertain terms) by the ex that she would attempt to secure full custody and the entire equity in the house (in my name) if I attempted to thwart her move in any way.  We are still not divorced but we have a written financial separation agreement now.

So... onto the latest developments!  I had been more or less happy with the contact as it was but the son has really started to like coming so has been every weekend (with the agreement of the ex) since christmas.  She called in February and used this as a way to negotiate never coming halfway for his visits (she had initially agreed to meet halfway as a 'sweetener' to her moving so far away).  The most she has been doing for the past 6 weeks or more is dropping him at her local train station, where he travels alone until he gets to a town around halfway where I collect him.  However, she has recently said that she wants the contact reduced again to a fortnightly visit, which has prompted my son to tell her that he wants to move in with me permanently.  He had been afraid of doing this because he was worried about her reaction.

Back in the summer holidays, an almost identical situation occurred wherby he liked staying so much and things were so difficult at home (I spent 14 years with her - it wasn't nice!) that he had thoughts of moving in with me.  On that occassion I got a shrift phonecall saying that the matter was completely off the table.  Nevermind what he wanted or whether his life here would be better.  She managed to put a gagging order on him and the next time I saw him it was like speaking to a member of the secret service.  I just got 'I can't talk about that' or 'Mum says I'm not allowed to talk to you about it'.

This time around, he had really built himself up to talking to her, even knowing the kind of resistance he would meet.  He prepared a speech on his phone and spent weeks going through the things she might say, only to be shot down in flames when he finally tried to speak to her.  I didn't have any real belief that she would say 'yes', but at the same time didn't think that she would so blatantly ignore his wishes for a second time.  He phoned me in tears saying how she had steamrollered him in her typical way - cutting him off, addressing his points with unrelated side issues, laying emotional blackmail on him and defaming my character as she went.  Only a few days later I can't help but wonder if he has changed his mind (or had his mind changed!) completely.  He says she has told him they would look at it when he turns 16!  This made me laugh as she must know that he can legally make his own choice by then.

I got a phonecall from her following that and she was not going to mention the talk she had had with our son.  When I asked about it she was very matter of fact: 'He's not going to come and live with you', 'He needs to be here', 'You are not a responsible parent because you don't maintain a relationship with your daughter'.  No reasons or addressing any points he or I had raised.

In the meantime I have applied for mediation to open up my court order options.  Obviously this is a last resort but the ex is tough, if not impossible to negotiate with.  By the same token I believe she would attempt to sling all types of mud in my direction if it ever did come to court, and it is a case of whether to start throwing first. I fully expect that the ex will attempt to cut, rather than increase, my contact once she realises that I am trying to progress this.  Has anyone had experience of custody battles with older children?  How much weight do the courts place on the child's wishes?

Sorry for the rant!

[Norfolk n Good]

Hi Cd999, and welcome.

Firstly, what a crap situation for your son to be in, I hate to think of the emeotional damage his current situation is causing him and the anguish it's causing you.

The issue regarding equity and house ownership is something I have no experience of so sadly I can't offer any comforting words on that front. This is something that is probably discussed with a professional rather than here on a forum.

Your ex threatening full custody.......in my opinion it's a load of puff. Even if she were to gain a residence order it isn't something she can attain overnight, especially when you take your son's age in to the equation, and given the contact you've had so far the worst you would come out with would be a contact order. If your x was to disregard this she could be bought before the courts to explain herself and ultimately a penalty could be handed down for her non compliance.

If there is no court order in force then the "preferred" way of dealing with custody issues is.....1, discussion between the parents to reach a resolution if no joy there then one or the other puts forward attending mediation, if that didn't work or one of you refused to attend then a court application could then follow. Given your son's age his views and opinions would certainly play a part in any court proceedings. Withdrawal of access is a common thing once a parent realises it's the only hold they have over you.

If your son does want to live with you and no order in force, then in theory there is nothing to stop him saying "Im going to live with dad" and he never returns to his mum's, but as you are already aware, it sounds like she's not averse to using threats and emotional blackmail to get her way, and if such an event was to happen then you'd need to be ready for any possible aggravation that might bring.For example making false allegations to the police concerning your behaviour.

Now from my own past experience of not wanting to be somewhere where someone wanted me to be (this was when I was a child) in real terms there is little that can be done to stop a child of his age from doing something unless you physically prevent him from from doing it. For example, if he was to say " if you make me live with mum I'll run away back to Dad", how can anyone physically force him to live there. It may not be the "given" way of doing things, but if he's that unhappy at his mum's........ Well I'm sure you get my drift. Even if he was forced back to his mum's, how will she stop him from running away again? Chain him down?

Naturally as his parent you want him to be safe, so to stop him running away from mums you offer that he lives with you.At least then he's not at risk on the streets.

There is the legal way, and although not everyone will agree with me, there is a streetsmart way.

[ConcernedDad999]

Thanks Norfolk for your reply. The 'nuclear' option to just not take him back of course is still on the table, and was one of the things I was wondering about. The 'puff' you speak of is a common thing with the ex but unfortunately is a bit more difficult for my son to see through, although he is getting much better at it! She has already told him that she would call the police if he didn't return. Aside from the legal aspect and whether or not they would have any power in this situation, my main concern is that it would cause him distress. In that respect, I'm tempted to think that the short term discomfort would be outweighed by the long-term outcome. The distress that a lengthy court battle, reduced or withdrawn access and the emotional strings that his mother will continue to pull would cause would probably cause him more damage in the long run. There is, of course, an outside chance (however unlikely) that she will see sense and choose not pursue it through the courts.

Another thing I thought of would be trying to obtain a PSO once he is here (within the first few days?). I'm not convinced that she hasn't already explored this avenue on her side - what would be the likelihood of being able to secure something like this in the short term and would it help? I think having something written down would both help him to feel secure here and also to deter her from turning up in the middle of the night and causing a fuss.

Of course you're right about the physical aspect but, his mother being who/how she is, she still obviously has a string emotional hold over him. I'm very proud of him for standing up to her and attempting to speak to her about this as she is very far from being the most approachable / reasonable person in the world! My concern is that her first contact following his move would be a barrage of emotional blackmail that he would find difficult to resist. Maybe I should consider limiting her contact until he settles here?

Thanks again for taking the time to reply, this forum must be a help to many other concerned dads out there and I really appreciate the hard work you and others put in to help us out!

Cheers

[Norfolk n Good]

As mentioned, if no order in place and you really do think that him living with you is the best course of action then there is nothing in law preventing you from having him reside with you, either short term or long term, especially considering his age and understanding of his current situation.

If you were to embark on this course of action, and the ex did involve the Police, as you are also his parent you currently hold an equal position to the mother in the eyes of the law and the usual course action would be the Police conducting a welfare check on him to ensure he is safe. It is highly unlikely they would force him to return to mum, especially if he can articulate his feelings to them, and what he might do if he was forced to return to her. They would then tell the mum he's safe and advise her to seek advice as to what she could do to get him to return to hers. This would take time and money on her part. As an aside....if you were to do this, continue to pay maintenance as you have been doing, as the ex gets the CB it is you that has to pay her, even if he lives with you. The last thing you want is to accrue arrears over this as irrespective of the physical situation regarding where your son is, it's the mum getting CB for him and therefore it is you who is liable to pay. CMA couldn't care less of the physical situation, just who gets CB and who should pay.

Regarding restricting access, if you genuinely believe it is causing your son emotional harm then, at least until it's resolved, maybe limit her to supervised access in your own home? It probably wouldn't be a bad idea to record any contact with some form of hidden camera...thus really protecting yourself in the event of false allegations. Don't put yourself in the situation where you can't disprove your ex's allegations.....In other words.....Cover your backside

If the ex turns up on the doorstep threatening this, that and the other then call the police immediately and let them deal with her. If she gets wound up enough then her own behaviour could lead to her arrest for a "Breach of the Peace".

For the moment don't worry about the PSO, in my opinion it isn't needed or appropriate at this stage.