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Child Arrangment Order Advice with Financial Divorce Final Hearing Looming
#1
The Final Hearing for my Financial divorce at the beginning of October is looming. Upon request of her intentions if the marital home that she resides in with our 2 kids (11 and 4) is sold, she confirmed in an open letter that she intends to move to Portishead. Portishead is 1 hour drive on the motorway from where she currently lives, Exeter, which is also where I live in rented accomodation. The mortgage on the marital home (4 bedroom detached) is too high for me to sustain, and as she does not work, does not contribute to it. I have all the way offered to buy a smaller house for her and the kids, or to switch the current mortgage to interest only. She has refused all offers, and has now stated that she will move to portishead if the house is sold. The court only has the power to award a messer type order or a house sale.
I have also asked to define child contact for the next 4 months, and her sollicitors have said that they only have legal aid to cover the financial divorce, and she or the sollictors have not responded to my letter requesting dates. I see them 5 nights out of every 14,when they stay with me at my house (or grandparents house, as I can only afford 2 bedrooms in a house share currently, and my oldest does not like sharing a bunk bed with his little sister. He wants his own room, like at his grandparents house). I have also shared the summer holidays equally with her, as the ex wife dictated the days, and I just agreed (even though they were inconvenient) , as I love seeing my kids.
I now feel that as I don't know when I am seeing my kids for the next few months, and that she has stated that she intends to move to Portishead where my 5 nights out of 14 (every weds night and every other weekend, Fri to Monday) contact will not be acheivable due to the distance, that I need to apply for a child arrangements order which covers several items. 
  • Where they go to school (oldest is starting secondary school in september, daughter is starting primary also in september)
  • Defined contact to ensure the 5 nights our of 14 days
  • Prohibitive steps order stopping her taking them to her home country of Bolivia
  • Specific issue allowing me to take them abroad on holidays
I am not sure whether this is the right application to make, or to make this application myself (or use a sollicitor although I really have not the funds to pay for it), or I should be going for a shared residence order.

What I want to acheive is for my kids to stay in exeter where there is great support network of family and friends in place already for them, and I believe they will benefit massively from their dad having a big part in their lives. I know my oldest would like to stay, as he is 11 and has said that, but my youngest is only 4 and is too young to know what she wants. My wife won't make a decision and will only abide by the court rules so mediation/negotation is out the window
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#2
You would be best applying for a Child Arrangements order for the Children to "live with" both parents (what used to be called a shared residence order). If you are happy with the 5 nights a fortnight and half the school holidays but just want that defined then ask for that. Another option is to ask for "lives with both parents" on a 50/50 shared care basis - ie they would spend half the time with each of you during term time and half the school holidays. A popular schedule for that is two consecutive midweek nights before or after a week-end and every other week-end. So a 2-2-5-5 schedule. So for example if you had them every Monday and Tuesday night and she had them every Wednesday and Thursday night and they spend Friday night to Monday morning every other week-end. So one week they'd be with you Friday, Sat Sun Mon Tues until Wed morning and the following week just Mon and Tues nights.

Just thinking it may make her more inclined to negotiate if you ask for more than you have now.

With a shared residence/lives with both parents order it does give you a bit more leverage if she decides to move. But ultimately if she did decide to move further away and out of the area it would then mean a prohibited steps application if you couldn't agree things at mediation. And that's a big topic on its own.

I recently got a "lives with both parents" order (it ended up being by consent mostly at final hearing but specific to my situation at the time). What I did was draft an order before the hearing with everything in that I wanted in it. This was used for negotiation before the final hearing and I compromised on the amount of time to get the "lives with both parents". But a number of people have had 50/50 shared care orders ordered by the court. What is more likely is the court would order a shared care order (same thing as "lives with both parents" but for the same time you have now. Asking for more time though gives you the ability to negotiate down to what you have now.

So yes I had on it specific issues regarding schooling

That neither parent may change the child's school without the written consent of both parents
That the child's secondary school needed to be agreed by both parents in writing

Now technically there is the argument that you should have that under parental responsibility anyway, but in reality the Mother often does it unilaterally as councils only send papers to one parent (usually the Mother or the one they live with the most time or the one in receipt of child maintenance etc).

By having it in the order it means if she does change schools without your consent it's a breach of a court order. Which holds more weight and can be enforced.

That gives you some control if she then says she intends to move. She can move if she wants but she can't change the childrens school without your consent or she's in breach. She may still do it anyway and breach the order and then it's all uncertain. What I did was inform the school that child couldn't be moved without consent of both parents and ask them to inform me if notice was given to leave the school (not a surefire insurance as they may give very short notice but could give some warning).

The other thing - if it's a lives with both parents order, is she can't change the schedules without your agreement or it's a breach. Technically that's the same with a "spends time with" order (what used to be called "contact) but it does hold a bit more weight if they live with you.

Basically though if you get whiff of a move you'd then need to apply for a prohibited steps order. It's a difficult area as the Mother has a human right to live wherever she wants, so you'd be saying the Mother can move but not "with the children" and asking for the children to live with you midweek and remain at the same school and week-ends with their Mother. Or some combination of some week-ends and extra holidays. Either way it's not ideal at a distance. Or you could ask for them to live with you and spend time with their Mother. But it's more likely, if it's a live with both parents order, that that would stand and just the times change - ie they still live with both parents but a different schedule.

Anyway I would focus first on getting the order that the children live with both parents, defined and with the specific issues over schooling and other matters. You could also ask for it to incorporate a prohibited steps order that she may not move out of the Uk but I'm not sure that would be relevant right now if you have a "lives with both parents" order. Because with that, if she just upped and left a court would most likely order her to return. What she should do to not be in breach, is apply to court herself for a specific issues order to move away, which you could then contest.

You would need to have had mediation before you apply for a Child Arrangements order. So suggest you book a MIAM asap (mediation information and assessment meeting) which is the first meeting, on your own, where you discuss the issues with the mediator and they then invite the ex to the next session. You need to have at least had a MIAM and been signed off from mediation to apply to court. Mediation may or may not help. If the mediator is good and can get you to agree most things and agree it's put into a consent order, then there's no need to apply to court for an order (although you would need a solicitor to approve the consent order wording before it's submitted to court). Most likely though your ex's solicitors will advise her not to agree to anything,but you never know.

Also in my order I had a clause saying passport would be kept by the Mother but made available 21 days before any holiday or at 7 days notice as and when required. And a clause saying any changes to arrangements within the order needed to be agreed in writing and if not agreed then arrangements revert to the order. With a lives with both parents order - either of you can leave the country for up to a month. ie you don't need her consent - I think you're both supposed to inform each other but not sure on that.

School holidays defined - I asked for weeks 2,3 and 5 of summer holidays, weeks to start the first Monday after schools break up at 9am. A full half term each from after school the Friday they break up to return to school the Monday they go back to school - (in my case October half term, with her having May) and a split half term, keeping to regular week-ends with changeover 12 noon on the Wednesday. Easter and Christmas tend to be a bit over two weeks so I had - half of Easter holidays to include a full week, and for Christmas had 24th to 26th and last 6 days of Christmas holidays on alternate years (ie she gets the same alternate years with the remainder of the holidays spent with the other parent).

And mention early May bank holiday as it's a Monday during term time and depends what your schedule is but can cause arguments.

Because there is the clause saying any changes to be agreed in writing but if not agreed it reverts to the order - then you can both be flexible over which particular dates you want at Christmas and Easter holidays (outside the actual Christmas days) as one or both of you may have a specific thing on a specific date. So you can change which days/weeks if both agree and it's reasonable but don't have to if they're messing about. Flexibility is expected but not very often I'd say - and it does work both ways. So if she had a special family event to go to with the kids in the last 6 days of the Christmas holidays and wanted to change a couple of days you could agree. But if you'd already got a holiday booked that week you can say no sorry but offer a facetime call instead or something.

Also you want "special days" defined in the order. eg Father's Day, Mother's Day, - others you think - eg child's birthday, parents birthdays.

Basically she can't move anywhere if there is a "lives with both parents order" that is defined - and if she does she is in breach. However she may breach so you would need to apply for prohibited steps if she intended to move - or try and change the schedule by agreement at mediation. There are some shared care orders with a lot of distance where the children spend all term time with one parent and most of the holidays with the other - but not ideal. The other alternative is to move as well. If it's an hour further away it's probably workable somehow. But a move abroad you'd have to try and stop.

Might also be an idea to have in the order that transport will be shared by both parents on alternate weeks (specify how) so that will make her think twice about moving an hour away if the kids stay at the same school and she has to do some of the driving).
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#3
Thank you so much Charlie. You've given me a greater understanding of the landscape and what I will apply for.
Outside of the initial application will I need to producing evidence to support the case as it moves forward with the courts. Did you handle everything without a solicitor?
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