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Your Rights if You Win Custody of Your Children

By: Chris Nickson - Updated: 28 Apr 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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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
Alex - Your Question:
Where do I stand please? I wanted to divorce my wife of 5 yrs, we have a 2 yr old. She has a history of binge drinking and has repeatedly drank when looking after our child while I am at work. I have become very concerned for our child's safety if I were to leave them with her. Would I get custody?

Our Response:
It is difficult to predict what a court may decide. Please see link: Applying for Custody: Court Procedure here which will tell you what the courts take into consideration when applying. It is obviously better if you can decide care between you or via Mediation.
SeparatedDads - 26-Feb-16 @ 3:09 PM
lill - Your Question:
I have two sons 1 and 2 years old I have broke up with their dad but I always worked full time and he stayed at home with the children when we broke up cause it was my chose I went and lived with my dad and the boys stayed with they father who lives with his mom and dad.I also now on Antidepressants as I have found it very hard not living and seeing my babies every day.my question is if I was to go to court work I have a chase of having them live with me full time ?

Our Response:
I'm afraid it is impossible to predict what a court of law may decide, but it is unlikely the court would hand over the children to the non-resident parent unless the court thought it was in the childrens' best interests to make the change. Please see link here which tells you what the court takes into consideration when making a decision. Perhaps you could suggest Mediation to your ex and see if he would consent to more overnight stays.
SeparatedDads - 26-Feb-16 @ 3:03 PM
Where do I stand please? I wanted to divorce my wife of 5 yrs, we have a 2 yr old. She has a history of binge drinking and has repeatedly drank when looking after our child while I am at work.I have become very concerned for our child's safety if I were to leave them with her. Would I get custody?
Alex - 25-Feb-16 @ 10:21 PM
I have been a stay at home dad for the first 2 years of my child's life. I am now wanting to break up with the mother. Can I get custody as my child? My child is use to being with me daily and this would be upsetting for my child if I was removed.
ned - 25-Feb-16 @ 9:58 PM
I have two sons 1 and 2 years old I have broke up with their dad but I always worked full time and he stayed at home with the children when we broke up cause it was my chose I went and lived with my dad and the boys stayed with they father who lives with his mom and dad .I also now on Antidepressants as I have found it very hard not living and seeing my babies every day .my question is if I was to go to court work I have a chase of having them live with me full time ?
lill - 25-Feb-16 @ 9:03 PM
loving mother - Your Question:
Hi im just wondering if you think I could get full custady of my children again. I had a breakdown 3 years ago after my childrens father walked out and left me pregnant with my 4th child he didnt c the kids for a year and a half then wen I had my breakdown he got full custody.i took 6 months out to get my health back on track then went back to court after 2 years of him not complying with the court orders im now having contact the kids always want to come home with me and wernt strange 1 bit when they seen me I would live them home but because they are using my mental health I dont no weather ill get them even joint custady if not full iv fone all the work they wanted me ti do and more feeling abit lost

Our Response:
You don't say how old your children are, but if any are over age 11, then they will be asked their opinion regarding where they wish to live if Cafcass gets involved. You may also be able to apply for shared care of your children. However, you may wish to seek legal advice regarding this and much depends on previous circumstances and whether your solicitor thinks you may have a case. When applying for custody or shared care the courts will take into account specific considerations, which can be found listed in the article here. If you cannot afford full legal fees because you are not working then you can self-litigate, see link here. I hope this helps.
SeparatedDads - 24-Feb-16 @ 12:43 PM
Hi im just wondering if you think i could get full custady of my children again..... i had a breakdown 3 years ago after my childrens father walked out and left me pregnant with my 4th child he didnt c the kids for a year and a half then wen i had my breakdown he got full custody....i took 6 months out to get my health back on track then went back to court after 2 years of him not complying with the court orders im now having contact the kids always want to come home with me and wernt strange 1 bit when they seen me i would live them home but because they are using my mental health i dont no weather ill get them even joint custady if not full iv fone all the work they wanted me ti do and more feeling abit lost
loving mother - 23-Feb-16 @ 1:26 PM
Confused - Your Question:
Has anyone had or has a bloke that has a jealous ex girlfriend but they both have a kid together , Have been together over 2 years now and the mother says the child isn’t aloud anywhere near me. Not even to know who I am to the child I’m classed as daddys friend if we bump into each other in straight and my partner is with he’s child for weekend. Every other weekend he has to go to he’s mothers and have he’s child for weekend We have a new born baby together an my partner first born is unaware that he has a baby brother due to he’s mum not wanting him to know about us. If we was to take it all to court would they stand next to the dad and allow the child be able to see him at Mine and my partners home and for all court letters to come here

Our Response:
Your partner as every right to apply for access to his child. Please see link: When Your Ex-Partner Denies You Access, here. While he can request that the court allows him access at home, I cannot speculate whether he would be awarded this, it would be up to the court to decide on what it feels is in the best interests of the child.
SeparatedDads - 17-Feb-16 @ 2:30 PM
Has anyone had or has a bloke that has a jealous ex girlfriend but they both have a kid together , Have been together over 2 years now and the mother says the child isn’t aloud anywhere near me. Not even to know who I am to the child I’m classed as daddys friend if we bump into each other in straight and my partner is with he’s child for weekend. Every other weekend he has to go to he’s mothers and have he’s child for weekendWe have a new born baby together an my partner first born is unaware that he has a baby brother due to he’s mum not wanting him to know about us. If we was to take it all to court would they stand next to the dad and allow the child be able to see him at Mine and my partners home and for all court letters to come here
Confused - 17-Feb-16 @ 2:17 AM
G - Your Question:
My American wife and I separated August 2015, she went back to her mothers house ( I don't know where that is). Our 6 yr old daughter remains with me and has a normal loving life understanding that mum lives in America now. She has had no contact with our daughter since September, and only two texts to me saying she wants me to pay for a divorce. How can I apply for sole custody as any application would be without her input as I don't know where she lives. In the texts she says she gives up all claim to our daughter but that won't count for anything as its unsubstantiated. I want to be able to take responsibility for decisions about my daughter and obtain a passport to take her on holiday. Thanks

Our Response:
I can only suggest you seek legal advice regarding this issue due to the complexity of yours and your ex's international situation.
SeparatedDads - 15-Feb-16 @ 12:59 PM
My American wife and I separated August 2015, she went back to her mothers house ( I don't know where that is). Our 6 yr old daughter remains with me and has a normal loving life understanding that mum lives in America now. She has had no contact with our daughter since September, and only two texts to me saying she wants me to pay for a divorce. How can I apply for sole custody as any application would be without her input as I don't know where she lives. In the texts she says she gives up all claim to our daughter but that won't count for anything as its unsubstantiated. I want to be able to take responsibility for decisions about my daughter and obtain a passport to take her on holiday. Thanks
G - 14-Feb-16 @ 11:11 PM
Jay - Your Question:
I've been in a relationship now with my partner for 3 years.I met her knowing she had a 4 year old and 6 month old. Their biological father is a known convict for burglaries and heroine abuse. He has no rights to them.however they were together for 7 years.However I am their dad and have had their names changed.I have now got a two year old with her, to which she suffered post natal depression with forcing me to lose my job to be there for the three kids.My partner used to be addicted to drugs but now works full time while I look after the three children. From waking up in the night to school runs to cooking dinner.My partner often has mood swings and threatens to leave me and ensure I'd have minimum access to the children if I donot give in to her control.Personally I would have my daughter and still look after the other two while she is at work, but chances of.that would be slim.She isn't the worse mum but she is far from a loving compassionate mom.Where do I stand?

Our Response:
It is a tricky question to answer as we cannot predict what a court may decide. However, it is unlikely you would gain custody of your non-biological children. I suggest you seek some legal advice.
SeparatedDads - 12-Feb-16 @ 3:09 PM
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