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Your Rights if You Win Custody of Your Children

By: Chris Nickson - Updated: 26 May 2016 | comments*Discuss
 
Separated Dads Custody Residence Order

The important fact to remember is that, in the majority of cases, the father will not be granted custody of the child by the courts. Individuals and groups have complained about this bias of the courts for several years, but it’s simply a fact that unless the circumstances are exceptional, the child or children will stay with their mother under a residence order, and you will be able to see them with a Contact Order.

Conditions For Father’s Custody

However, there are times when a judge will look very favourably on a father’s application for custody. Where the mother has a history of addiction to drink or drugs or an extensive history of binge drinking, which you can prove, there’s a good chance you’ll be given custody. There are solid reasons for this, since addicts often turn to crime to feed their habits, which can put the child in situations that aren’t good as he or she grows.

The courts take a similar attitude where the mother has a criminal record, at least if it’s a reasonably extensive one showing her to be a repeat offender. That applies whether she’s in jail or not (there are instances where mothers in jail can keep very young children with them, but those are few and far between).

The mother might be considered physically or emotionally incapable of raising a child. That might be due to a physical handicap, or it could be emotional instability. In those cases, the father would be given custody.

Similarly, where there’s been emotional or physical abuse of the child by the mother, and it can be proven, then the father will definitely receive custody. Sadly, abuse rates by mothers have been on the increase.

Finally, if the mother is deemed to have abandoned her children, the father will receive custody. Abandoned is classed as not being in communication with a child for a set period, whether by mail, phone, physical contact or email. Also, if she leaves with a new partner and has no contact with the children, or if she neglects the children when they’re in her care, then custody will devolve to the father.

Your Rights

When you have custody, you have the same rights as a mother with custody, and the mother would have Visitation Rights with the children (of course, there might be circumstances when she might be denied access). Be sure you obey the contact order fully.

Something to be aware of is that the mother can later petition the court to have the residence order changed, if she’s cleaned up her act and can prove herself to be upstanding and likely to be a good parent. Sadly, there’s a fair chance she might win, although the courts will take the wishes of the children into account.

You’d do right to feel that everything is more fragile than if you were female, since it probably is. She can always come back with her lawyer.

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Laurie - Your Question:
My partner is considering petitioning the courts for parental responsibility and a residency order for his son, I am fortunate enough that I was able to do this when I separated from my children's father a few years ago but I want to be sure that by us doing this it will not affect the access he already has with his son. At the moment he lives with us 4 nights a week and the remainder of the week is spent with his mother. We have him for every school holiday and Xmas etc during this time his mother does not ever even attempt to make contact with him. As much as we are happy for his mother to have access to see him she is extremely unreasonable when discussing the best interests of her son. For example he is extremely overweight and as much as we have all changed how we eat at home his mother refuses to address what she feeds him which prevents us making much progress. I also suspect hat he has other issues which need to be examined, he displays a lot of the characteristics of a child with FAS, his mother was always and still is a heavy drinker. The ADHD part of his personality we can cope fine with at home however his developmental issues have now started to affect his progress in school. The fact again that his mother refuses to accept there is any issue which needs to be examined means we are unable to have him diagnosed and properly supported (my partners other child had quite severe emotional scars due to her relationship with her mother and had been referred to CAMHS regularly throughout her childhood.) the only reason we have not already applied for custody is because we know that it is highly unlikely that fathers are awarded custody unless it's in an extreme situation. Please can you give me some advice on what we can or should do in this situation. Thank you.

Our Response:
If your partner and you have his son for the majority of the week then there is nothing stopping you applying for a child arrangement order for his son to determine who the child shall live with, given you already have what is essentially shared care. If you were awarded this, then the mother would be given a contact order in much the same way as she has now. The courts will always act on what it thinks in the best interest of the child, but that also doesn't mean stopping his son from seeing his mother. The fact he is overweight and may have other issues will not be the priority of the court, but his personal relationships with other members of his family and keeping those relationships stable and consistent will.
SeparatedDads - 27-May-16 @ 2:04 PM
My partner is considering petitioning the courts for parental responsibility and a residency order for his son, I am fortunate enough that I was able to do this when I separated from my children's father a few years ago but I want to be sure that by us doing this it will not affect the access he already has with his son. At the moment he lives with us 4 nights a week and the remainder of the week is spent with his mother. We have him for every school holiday and Xmas etc during this time his mother does not ever even attempt to make contact with him. As much as we are happy for his mother to have access to see him she is extremely unreasonable when discussing the best interests of her son. For example he is extremely overweight and as much as we have all changed how we eat at home his mother refuses to address what she feeds him which prevents us making much progress. I also suspect hat he has other issues which need to be examined, he displays a lot of the characteristics of a child with FAS, his mother was always and still is a heavy drinker... The ADHD part of his personality we can cope fine with at home however his developmental issues have now started to affect his progress in school. The fact again that his mother refuses to accept there is any issue which needs to be examined means we are unable to have him diagnosed and properly supported (my partners other child had quite severe emotional scars due to her relationship with her mother and had been referred to CAMHS regularly throughout her childhood.) the only reason we have not already applied for custody is because we know that it is highly unlikely that fathers are awarded custody unless it's in an extreme situation. Please can you give me some advice on what we can or should do in this situation. Thank you.
Laurie - 26-May-16 @ 7:34 PM
Lindylou - Your Question:
I'm in a very desperate situation. My two sons live with there father and he has moved in a new girlfriend. Me and my family have been completely excluded from my son. The girlfriend is taking my son to school picking him up taking him swimming lessons and everything. I feel like a victim of parental alienation surley this is emotional abuse to my son keeping him away from his mother. The father won't even let me have a phone conversation with him please help I miss him so bad I feel powerless.

Our Response:
I am sorry to hear this. You don't say whether you have a court order to see your children, or not. If you have a court order, then you can take this matter back to court to have the order enforced. If you don't have a court order, then you would have to take the matter to court and apply for access. Please see link: When Your Ex-Partner Denies You Access, here which applies to both mothers and fathers. You would have to go through the motions laid out in the article.
SeparatedDads - 26-May-16 @ 12:45 PM
I'm in a very desperate situation. My two sons live with there father and he has moved in a new girlfriend. Me and my family have been completely excluded from my son. The girlfriend is taking my son to school picking him up taking him swimming lessons and everything. I feel like a victim of parental alienation surley this is emotional abuse to my son keeping him away from his mother. The father won't even let me have a phone conversation with him please help I miss him so bad I feel powerless .
Lindylou - 25-May-16 @ 9:47 PM
Hi I'm currently been with my partner for 4 years now I we have 5 children 3 are not mine and 2 are!! I really don't want to be with her anymore because of drug abuse and the fact she thinks nothing about her self I don't really have any accomadation To go too with the children so am I stuck with this women because that's what it feels like :(
Freedom2016 - 21-May-16 @ 11:09 AM
Hi I was just granted custody of my daughter from her mother. Our daughter has lived with her mom all of her life except while we were together. Our daughter is almost 5 by the way. My question is...Now that I have custody how do I go about actually taking physical custody of our daughter since mom is not going to just drop her off to me?
DAD - 20-May-16 @ 9:36 PM
Chris - Your Question:
My ex husband is taking me to court over our 6yo son and 11yo daughter (daughter is not his) my children are on the child protection act list,due to my eldest (14yo) being attacked by her ex boyfriend. I have drank in the past but now don't, the children are happy and looked after with no concerns. He was violent but I never reported it. He also had me attacked (something I can not prove) and has told general lies. Due to him spiking me and me having a melt down last year,my health has suffered. I'm better now and have support from my current partner. The children are more than happy and safe with me, where do I stand?

Our Response:
I'm afraid this is a difficult question to answer as much will depend on what Cafcass advises in its report, please see article: What Goes into the Cafcass Family Report? here . It is highly unlikely the court would award your ex custody of a child that is not his. The court will always rule on what is in the best interests of your children and stability and consistency is of paramount importance. The court will also only move a child from a resident parent to a non-resident parent if considered absolutely necessary. If your children are considered 'happy' then it is unlikely the courts will rule to move them from you and hand them over to your ex.
SeparatedDads - 20-May-16 @ 11:30 AM
My ex husband is taking me to court over our 6yo son and 11yo daughter (daughter is not his) my children are on the child protection act list,due to my eldest (14yo) being attacked by her ex boyfriend. I have drank in the past but now don't, the children are happy and looked after with no concerns. He was violent but i never reported it. He also had me attacked (something i can not prove) and has told general lies. Due to him spiking me and me having a melt down last year,my health has suffered. I'm better now and have support from my current partner. The children are more than happy and safe with me, where do i stand?
Chris - 19-May-16 @ 2:49 PM
Kurt25layton - Your Question:
Hi Iam going to court to get a residence order I've not stop his mother from seeing him but she's only bin once in the last 3weeks for an hour ano his mother use to leave my son with how ever so she could do her own thing left him were he's burnt. His arm n is struggling now she had my son with two other childern and one on the way what's my chances of me getting this as ATM she has bin threating kill her self if she don't get her own way but has put no effort in to see my son since I've kept him until this gets sorted thanks

Our Response:
I'm afraid we cannot predict what chances you have of gaining a child arrangement order. However, the courts usually adhere to the Cafcass Report, so whatever Cafcass recommends, the court will listen to, please see link: What Goes into the Cafcass Family Report? here. I hope this helps.
SeparatedDads - 11-May-16 @ 1:48 PM
Hi Iam going to court to get a residence order I've not stop his mother from seeing him but she's only bin once in the last 3weeks for an hour ano his mother use to leave my son with how ever so she could do her own thing left him were he's burnt. His arm n is struggling now she had my son with two other childern and one on the way what's my chances of me getting this as ATM she has bin threating kill her self if she don't get her own way but has put no effort in to see my son since I've kept him until this gets sorted thanks
Kurt25layton - 10-May-16 @ 5:42 PM
Kept in the dark- Your Question:
Hi my ex partner has custody of our children. I've recently found out my ex may be facing a custodial sentence. She is refusing to admit to me what is actually going on. If she goes to prison can she leave the kids in someone else's care with out my consent? And what would I need to do to take custody of the children.

Our Response:
I suggest in this instance you seek legal advice. She may wish to leave the children with family should this be the case. However, if you have Parental Responsibility and are against this, then you will have a say regarding what should happen to your children in their mother's absence.
SeparatedDads - 10-May-16 @ 2:22 PM
Hi my ex partner has custody of our children. I've recently found out my ex may be facing a custodial sentence. She isrefusing to admit to me what is actually going on. If she goes to prison can she leave the kids in someone else's care with out my consent? And what would I need to do to take custody of the children.
Kept in the dark - 9-May-16 @ 11:05 PM
I broke up with my daughters father almost 4 years ago straight after she was born. He was always in and out of prison and always for violence. I decided against putting his name on the birth certificate but I've never stopped him from spending as much time as he wants with her. Even though I don't get on with his new partner, I still don't interfere on his time. On average, he has her 2-3 nights a week. Recently he has become very bossy and controlling. He keeps her for as many days as he wants, he won't let me speak to herand he questions/insults my parenting. He wants to take her on holiday in July and I am opposed to it. My reasons being that he has been arrested twice for beating up his new partner. One arrest resulted in him being locked up for 5months before the charges were dropped. Although he has only been arrested as charges are always dropped. I have said she can't go but her dad is threatening to harm me if I don't hand over her passport. I am fearful that if I go to the police with no evidence of the threat, it will cause worse problems. Legally he can't take her without my permission, so what would be the best course of action? Should I give him the passport and have him arrested at the airport? Should I have the police waiting for him on arrival to pick her up and the passport? Please help. Thanks!
Proudmummy_astar - 28-Apr-16 @ 12:29 PM
I broke up with my daughters father almost 4 years ago straight after she was born. He was always in and out of prison and always for violence. I decided against putting his name on the birth certificate but I've never stopped him from spending as much time as he wants with her. Even though I don't get on with his new partner, I still don't interfere on his time. On average, he has her 2-3 nights a week. Recently he has become very bossy and controlling. He keeps her for as many days as he wants, he won't let me speak to herand he questions/insults my parenting. He wants to take her on holiday in July and I am opposed to it. My reasons being that he has been arrested twice for beating up his new partner. One arrest resulted in him being locked up for 5months before the charges were dropped. Although he has only been arrested as charges are always dropped. I have said she can't go but her dad is threatening to harm me if I don't hand over her passport. I am fearful that if I go to the police with no evidence of the threat, it will cause worse problems. Legally he can't take her without my permission, so what would be the best course of action? Should I give him the passport and have him arrested at the airport? Should I have the police waiting for him on arrival to pick her up and the passport? Please help. Thanks!
Proudmummy_astar - 28-Apr-16 @ 11:51 AM
tally - Your Question:
My partner has just got custody of his children. The mother had been putting the kids at risk withher partner who assaulted her eldest daughter. The mother has every other weekend visits and has stopped seeing one child completely and didn't even wish him happy birthday. She is fast to accuse us of not doing something eg letting her know that one of the kids was sick ( even though she didn't let us know the week before) she has threatened to Take him back to court and says she would win. How likely is that?

Our Response:
It is unlikely your partner's ex would be granted custody if the children have been removed from her. The court will always rule what is in the best interests of the children and stability and consistency in the home environment is one of the most important aspects.
SeparatedDads - 13-Apr-16 @ 2:31 PM
My partner has just got custody of his children. The mother had been putting the kids at risk withher partner who assaulted her eldest daughter. The mother has every other weekend visits and has stopped seeing one child completely and didn't even wish him happy birthday. She is fast to accuse us of not doing something eg letting her know that one of the kids was sick ( even though she didn't let us know the week before)she has threatened to Take him back to court and says she would win. How likely is that?
tally - 12-Apr-16 @ 9:08 PM
Dave - Your Question:
I received a call from social services explaining of a situation regarding my child's mother who has custody that her partner was having voices telling him to harm my child and her, a situation I was kept in the dark about! I was only informed as the school had figured I wasn't told, as previously had issues with the mother informing me important school related info explained it to the teacher and have them my number for regular updates! The mothers mother took my child out of her home because of this, id started to grow suspicious that he was living there or there unusually frequently already! The agreement between social services and her is that her partner can be nowhere near or have contact with my child, as to which she pretty much leaves him at her mothers, basically so she can see him at the house without breaching that agreement. Basically he lives with the nana! The mother is on my opinion unstable sand the child protection have been 'assessing her abilities to be a mother'. Obviously I'm going to go for full custody, I believe the grandparents will try against me, what are the laws, best options and likeness to be successful?

Our Response:
I'm afraid we cannot say how successful your court application may be, but the quicker you address it the better as the longer your son is living at his grandmother's house, the less likely the courts will be willing to disrupt this arrangement, if he seems settled. However, as you are your son's father you stand an equally good chance of being given residency of your son. The court will assess what input you have in your son's life, the age of your son (if he is over 10/11 he wil be allowed to have a preference of where he wishes to live), accessibility of his school etc, and your ability to care for your son on a day-to-day basis. The courts will want the least disruption to your son's life possible and will rule what it thinks is in your child's best interests which is impossible to predict. I can only suggest you seek some legal advice in order to explore your options.
SeparatedDads - 7-Apr-16 @ 1:50 PM
I received a call from social services explaining of a situation regarding my child's mother who has custody that her partner was having voices telling him to harm my child and her, a situation I was kept in the dark about! I was only informed as the school had figured I wasn't told, as previously had issues with the mother informing me important school related info explained it to the teacher and have them my number for regular updates! The mothers mother took my child out of her home because of this, id started to grow suspicious that he was living there or there unusually frequently already! The agreement between social services and her is that her partner can be nowhere near or have contact with my child, as to which she pretty much leaves him at her mothers, basically so she can see him at the house without breaching that agreement... Basically he lives with the nana! The mother is on my opinion unstable sand the child protection have been 'assessing her abilities to be a mother' . Obviously I'm going to go for full custody, I believe the grandparents will try against me, what are the laws, best options and likeness to be successful?
Dave - 6-Apr-16 @ 10:48 PM
Big man- Your Question:
I've had full custody of my son for over 2 years now. And I won't to move away and start a new life with him can I move without his mums permission

Our Response:
You would need consent from his mother as she has Parental Responsibility. If your ex's mother refuses, then you would have to apply through the courts.
SeparatedDads - 1-Apr-16 @ 12:29 PM
I've had full custody of my son for over 2 years now. And I won't to move away and start a new life with him can I move without his mums permission
Big man - 31-Mar-16 @ 7:37 PM
Colin nicholl - Your Question:
My ex moved 40 miles from me with son and now I only see him every 2nd weekend. I pay her 150 per month but she demands more all the time. She has quit her job as her new man is rich. My son feels he is in the road and worried when they have a new baby he will be pushed aside. They never do anything with him. He has put on loads of weight and I get pulled up by her if I dont take him out when I see him. His mother only sees negative in him and is always moaning to me about his attitude but he is fine when with me. He said his head is about to burst. She has not reg him with a doctor and dentist yet in new area and when I aak hee I am hung up on.

Our Response:
If you have a family based arrangement then you can see how much you should be paying via the link here. You don't say how old your child is, but if he is over the age of 11 his opinion will be taken into consideration if you apply for a residence order through the courts. You would first have to suggest mediation to your ex, if she won't agree to your son spending more time with you, then you would have to take the matter to court. While it is rare that a court will take a child from a resident parent and give residency to a non-resident parent without good reason, it will take your son's opinion into consideration if he is old enough to be able to justify his reasons. However, the court will still decide upon what 'it' thinks is in the best interests of your child.
SeparatedDads - 31-Mar-16 @ 11:47 AM
My ex moved 40 miles from me with son and now i only see him every 2nd weekend.I pay her 150 per month but she demands more all the time.She has quit her job as her new man is rich.My son feels he is in the road and worried when they have a new baby he will be pushed aside.They never do anything with him.He has put on loads of weight and i get pulled up by her if i dont take him out when i see him.His mother only sees negative in him and is always moaning to me about his attitude but he is fine when with me.He said his head is about to burst.She has not reg him with a doctor and dentist yet in new area and when i aak hee i am hung up on.
Colin nicholl - 30-Mar-16 @ 8:27 AM
My wife has been having numerous affairs to the extent of her leaving my daughter alone in while she slipped out to meet different men, I have prufe on watsap and my daughter also aknowledges her absence whilst getting up at night to find her mom gone, the child would count cards until her mom returns after an hour or two, how will this stand in court
Manny - 28-Mar-16 @ 1:55 PM
Hi, I've been separated from my ex for almost 3 years now and we have a 5 year old daughter together... She's recently asking me if I'd be prepared to take on my daughter full time. I now have a new partner and a one year old daughter and we get married in 6 weeks. Where do we stand with changing my eldest daughters residency so that she lives with us? We live 20 miles from her at the moment so she will have to change schools as well as the environment she is in at home. She's admitted to me and her mum that she's not happy at home and she's passed backwards and forwards between 2-3 different houses when she's in her mums care due to her mum working a lot whereas when she's with me she stays in one place. Will a court deny a change in residency even if my daughter admits she isn't happy with her mam and her mam herself has asked if we'd be prepared to take her on?? Thanks
Kev - 25-Mar-16 @ 7:39 AM
Sharon - Your Question:
I have sole custody of my two girls since September. Reason for my youngest pickedUp a bag of heroine off the floor that fell out of her fathers pocket. He was on the run for 7 months didn't cooperate with Dyfs or the courts. Finally after getting raided by police and serving a week and a half in jail then remarried his ex wife. He contacts Dyfs for the first time in 7 months and wants to file for custody. My oldest daughter is struggling in counseling and seeing therapists.Has been in crisis. What's his chances of getting any kind of custody or visitation?

Our Response:
I can't predict what the courts may decide with regards to visitation. However, the liklihood of him gaining custody is highly unlikely. The courts will always decide what it thinks is in the best interests of your child and stability and consistency is very important - therefore to take a child from a resident-parent and hand her to a non-resident parent is never done, unless there is a very good reason why the court thinks this should be so.
SeparatedDads - 17-Mar-16 @ 1:54 PM
I have sole custody of my two girls since September. Reason for my youngest picked Up a bag of heroine off the floor that fell out of her fathers pocket. He was on the run for 7 months didn't cooperate with Dyfs or the courts. Finally after getting raided by police and serving a week and a half in jail then remarried his ex wife. He contacts Dyfs for the first time in 7 months and wants to file for custody. My oldest daughter is struggling in counseling and seeing therapists. Has been in crisis. What's his chances of getting any kind of custody or visitation?
Sharon - 17-Mar-16 @ 2:28 AM
Denise- Your Question:
Hi my son's is in foster care. 12 and 8 for 3 mths now. The take them because I leave the 8 yr old at home and went work. My home is not in danger they were food drink and water. Cause he wasn't feeling well. No temperature just wasn't well. It's section 20 there under. Now they dad come forward saying he want full custody of them. I went through yrs of domestic violence wid him and he have criminal records. Can he get full custody of my boys

Our Response:
Unfortunately, we cannot anticipate what a court may decide, However, the courts will always decide what is in the best interests of your children, and if the court deems your ex unsuitable, it won't place your children in his care.
SeparatedDads - 9-Mar-16 @ 11:27 AM
Hi my son's is in foster care. 12 and 8 for 3 mths now. The take them because I leave the 8 yr old at home and went work. My home is not in danger they were food drink and water. Cause he wasn't feeling well. No temperature just wasn't well. It's section 20 there under. Now they dad come forward saying he want full custody of them. I went through yrs of domestic violence wid him and he have criminal records. Can he get full custody of my boys
Denise - 8-Mar-16 @ 8:32 AM
P.D. - Your Question:
Hi,I would like to look at full time custody for my son. He is with his mum full time but she leaves him with a new partner when she goes to work or out with friends, I am generally concerned as sometimes he does not want to go home either. Do I have a case here as she is generally I guess a safe and caring mum, so I dont have much to go off other then I am his dad and want to have him in what I believe to be my safer care.Plus how do I know what background this man has.

Our Response:
If you are genuinely concerned, you can get a check on your ex's background see link here. However, if you get on with your ex, then the best thing to do is to talk about it with her and ask whether you can have your son at the times when her partner has him. It is very unusual that the courts will take a child from a loving parent and hand the child over to the non-resident parent, unless absolutely necessary. Mediation may be another option to consider and one which you would have to seek before the court will let you apply for a court order, please see link: here. I hope this helps.
SeparatedDads - 1-Mar-16 @ 12:34 PM
Hi, I would like to look at full time custody for my son. He is with his mum full time but she leaves him with a new partner when she goes to work or out with friends, I am generally concerned as sometimes he does not want to go home either. Do I have a case here as she is generally I guess a safe and caring mum, so idont have much to go off other then I am his dad and want to have him in what I believe to be my safer care. Plus how do I know what background this man has.
P.D. - 29-Feb-16 @ 2:19 PM
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