LGBT parents – the basics

With the increasing openness when it comes to the existence of LGBT people there’s a corresponding increase in the visibility of them in all walks of life – including as parents. Unsurprisingly enough (for some of us at least) lesbian, gay, bi and trans people do have kids.

Some of them are conceived, born and are raised in families in the *ahem* old-fashioned way, others in a more circuitous manner. It’s not an unreasonable believe to think that a non-traditional family faces it’s own unique challenges and in many respects it’s a correct one.

In terms of the law however there isn’t a great deal of difference between straight and/or cis people and everyone else when it comes to the matters concerning contact, residence (OK, OK `who the child lives with’) and everything else the Family Court is concerned with.

There are a few basic thoughts to consider here.

PR is important to LGBT people

Parental Responsibility is the key here. In short that means a) being on the birth certificate or b) having an order awarding you PR. Without it, you are at a serious disadvantage.

If you’re adopting a child, it’s something that should be taken care of. If you’re conceiving artificially, make sure you are on the birth certificate – or that the birth parent signs a C(PRA001) form to give it to you.

Rainbow flagThe nuclear scenario? You split from your partner and you don’t have PR. Your ex refuses contact and when you apply to the courts you’ll be filling in the standard form for contact (a C100) but you’ll also be needing a C2 (permission to apply) because you have no legal relationship with your child. And when you get there your ex will deny contact, deny you had much involvement with your own child and in the meantime is free to change their name, give PR to whoever they like and move to the other side of the planet if they so wish without you being able to stop them.

So get PR.

The T in LGBT

When it comes to trans parents they may well already have PR – particularly if the child was conceived/born before transitioning. It’s a sad fact to say that many of our trans clients coming out/transitioning has been at least a factor in the breakdown of their relationship with their ex’s. And often a source of hostility when it comes to children having an ongoing relationship.

Yet children are usually completely unfazed by this because Mum is still Mum and Dad is still Dad.

Furthermore in our experience the court is usually completely indifferent to a client’s status as transgender and wholly uninterested in parents seeking to use this fact to limit a child’s relationship with either parent. It is possible it will likely be an aspect discussed in any welfare report (such as a CAFCASS Section 7 Report) but will often carrying little weight overall.

But that’s no different to any other case where a child’s welfare is examined.

TL:DR

If you don’t have PR, get it. Whether you are still with your partner or they are now your ex. You are putting yourself at a serious disadvantage without it.

Stepparent rights?

When your ex remarries their new husband or wife have legal rights over your children, right? They are a stepparent after all aren’t they? Not the same as a biological parent, true – but a parent all the same.

They’ll be able to make major decisions about your kids’ lives. Where they go to school. What medical treatment they receive. That sort of thing. They’re your kids’ parent as much as you aren’t they? Especially as they will likely see your kids more than you do, right?

A Stepparent has no legal rights or responsibilities.

Being a stepparent confers no rights and no responsibilities. They have no legal relationship to your child. The only thing that counts is PR (Parental Responsibility).

Wicked stepmotherBut Aha!’ I hear you cry. `My ex’s new partner/spouse is listed as a contact at my kids’ school and doctor! And they told me they aren’t going to allow me to see the kids!’

As always…this is a lack of understanding of the law. It’s not the law itself. If your ex has PR they have the same legal status as everyone else. And they’re only going to get that by getting a court to order it or with the agreement of everyone else who has PR (and I am assuming that includes you, dear reader).

So assuming your ex’s partner acts in a way that is inconsistent to your child’s best interests what do you do? Quite simply – they’re not a party to anything that involves your children. Your ex, as the responsible and child-focused adult that he/she undoubtedly is will of course only allow your child to spend time with an appropriate adult.

Your ex is responsible for their partner as a stepparent

Any application to the court should be to other holders of PR – usually your ex. Simple as that.

A stepparent can make an application with regard to your children however. To do so they need a C100 and a C2 form (the latter for permission); they’ll need to demonstrate they have played a meaningful role in your children’s lives for their application to be heard.

Anyone who doesn’t have PR for a child is in the same boat – it doesn’t matter what their relationship with the child is. So don’t focus on your ex’s new partner; it is all about the best interests of your child as always.

 

Is having Parental Responsibility a waste of time?

PR (Parental Responsibility) doesn’t stop your ex denying your kids time with you.

It doesn’t stop him/her deciding what school they go to, what medical treatment they get, etc.  You do have a legal right to be `consulted’ – but seeing as there’s no definition of what this actually means this means it can range all the way from you and your ex discussing things like grownups and coming to an agreement all the way to being informed `That’s my decision whether you like or not’.

Your child’s name cannot be changed without the agreement of everyone who currently has PR or a court order either.

In private law unless there is an order that says otherwise all the rights and responsibilities of PR remain whether you see your kids or not, whether you have a residence order or not, whether the ex says you don’t have any rights any more or not. The rights and responsibilities are helpfully listed in a landmark case – A vs A.

Let me tell you a story…

…once upon a time there was a dad called John. John had a son but didn’t see him much and didn’t have PR for him either. He wasn’t even mentioned on his son’s birth certificate as his father! He was scared to ask for PR because he was worried his son’s mum would stop his son seeing him. So he took what time with his son he was allowed. After an argument with his son’s mum he saw his son less than he did before.

His son’s mum met a new partner who she loved a great deal. She loved him so much she gave him PR for the little boy. And because she loved him so much she married him – and decided it made sense for the son to have the same family name as her and her new husband’s one.

John was extremely upset by all this. As time went on, his son saw him even less and asked for more time and to be given PR. He asked to be named on his son’s birth certificate but his son’s mum decided it would be less confusing if her husband was on it instead – so she changed it. His son’s mum’s new husband told John he couldn’t have PR either and there was nothing John could do about it…and he was right apart from going to court.

PR is an essential – not an optional extra.

You can apply for a court order for contact without PR. It does happen. Expect to be asked why you’ve not bothered to apply for it in the past however – and expect the other party to suggest you aren’t committed to your child. You can convince your kids’ school or doctor to keep you on the loop – but don’t be surprised if they refuse or suddenly change their mind when the ex tells them not.

PR means you are as much a parent as anyone else who has it.

How the kids divide their time doesn’t change that. Neither does a Residence Order. You are a parent. Act like it!

Will my ex stop me taking my kids abroad on holiday?

Holiday times are busy here at Family Law Assistance Towers. It’s up there with Christmas, Easter and any other occasion you really, really don’t want ruined.

It’s also a situation where there is a lot of disinformation and misunderstanding.

So to cut to the chase, here are a few truth bombs:

  1. It doesn’t matter if you or your ex has a Residence Order (or neither of you do) – if you have PR for your kids you can get a passport for them – you will need to provide the Passport Agency with a copy of your court order to do this. Make sure you do this way ahead of travel.
  2. If your ex has a Residence Order and you don’t you need his/her permission (it doesn’t have to be written permission mind) to take the kids abroad for up to 28 days.
  3. If there is a Shared Residence Order or no order at all made with regard to residence at all you can both take the kids abroad for up to 28 days without the other parent’s permission.
  4. You don’t have to give the other parent details of where you are going – but do it, OK? If you’re withholding it you’re liable to be seen as `sticking it to the ex’ rather than doing it for any child-focused reason. Flight details and the resort, etc. It’s a just normal courtesy.
  5. If your ex has the passports and refuses to hand them over organise mediation (if there is time) or make an application for a Specific Issues Order (if there isn’t) – completing a C100 form. Bear in mind with this one that delays in the court are especially pronounced around holiday time so make sure you organise all of this plenty of time ahead. You will get a hearing date after your holiday if you don’t get your skates on.

Hope this helps. Unless you have a court order that modifies or limits it, it is all about PR (Parental Responsibility). As I repeat ad nauseum it’s not really about Residence Orders despite everyone absolutely positively needing one to make sure the kids aren’t taken away.

4 of the biggest myths in the Family Court

As sure as night follows day, the same misunderstandings about how the Family Courts work will be stated, restated, restated again and for good measure retweeted/shared/argued about.

Disregard this sort of thing and you’re not going to help yourself.

The sad thing is that many of them make things harder for people going through the whole process. It makes them do things that don’t help anyone (including their kids) or themselves, pitches them into conflicts that quite frankly aren’t worth happening and generally case trouble. Even if you know these but if the other party doesn’t it will often lead them to act in a way that seems irrational and counterproductive.

There are far more than 4 myths that do this (and I would put money on the fact I’ll be adding more of them as time progresses) but here are some of the `best’.

So here goes…

No.1 – If you have a residence order you can phone the police to get the kids back if your ex refuses to return them.

No. It. Won’t. Phone your local station and say this. Try it. Forget for a moment that this sort of dispute and the police only deal with criminal matters – not civil ones (bit of a spoiler really…).

You: Hello police? I’ve got a residence order and my ex won’t give me the kids back! Can you go round there and take them off him/her?

PC999: Do you have any welfare concerns?

You: Not really, it’s just that I’m the resident parent and he/she is breaking a court order! They should be with me! I’m the main parent!

PC999: OK…not much we can do I am afraid. You need to speak to your solicitor to take the matter back to court. Tell you what…we’ll go round there and advise him/her to hand them over and do a welfare check but that’s all we can do really.

That’s if the police follow the rules, mind. I do know of a couple of cases where officers have removed children without an Emergency Protection Order or without sufficient welfare concerns….and they have found themselves having a very serious chat with the Inspector about how removing kids from parents with PR without good reason tends to go down very badly.

So the moral of this story kids? Don’t think a residence order will stop your ex taking the kids.

No. 2 – An enforcement application will get your ex to abide with an order.

I hate to be the bearer of bad news here – because going back to court is kind of the only option you have if your ex decides he/she is going to ignore the damn thing. Statistically you have less than a 1 in 50 chance of an enforcement application succeeding.

What normally happens is you will make an enforcement application…and your ex will  justify breaking the order by saying it isn’t working. What he/she should do of course is talk to you about agreeing a change to arrangements or making his/her own application for a variation. But seeing as that’d cost him/her £215 it’s much chearper and easier just to say I’m changing things. If you don’t like it – tough’ compelling the non resident parent to either say a) `Yes OK’ or b) Filling in the c79 and paying the fee himself/herself.

Followed by your ex seeking to hijack your application and turning it into a variation matter. This happens in a depressingly high number of situations this is what happens. Should you decide to apply for a penal notice don’t think one will be ordered either. You are more likely to be accused of trying to punish your ex.

No. 3 – If you get married your new partner automatically gets PR.

Nope nope nope. Doesn’t work like that. A stepparent has no legal relationship with a stepchild. None at all. If they want PR they’ll either have to get the agreement of everyone who has PR already. Or a court order.

That’s it.

No. 4 – When it comes to financial matters in divorce you get out what you put in.

Again…no. Not true. Consider the following assets and liabilities:

  • The large family estate consisting of a portfolio of properties in the UK that William the Conqueror gave to a distant ancestor of yours.
  • An eye watering credit card bill incurred by your ex as a result of the luxury cruise he/she had to take to get over your separation, comforted only by the new partner he/she left you for.
  • The money earned by your business that you’ve slaved for while your ex has sat on velvet cushions and ate chocolates.

It doesn’t matter where the money came from. Or where it went. Or who earned it. Or who spent it. All assets and liabilities go into the marital `pot’ and are divided up according to need. Remember though – money follows the children. Their needs come first.

It’s also worth remembering that as we’re talking about the Matrimonial Causes Act 1973 (and not the Children Act 1989) behaviour isn’t a factor in most cases. So attempting to tarnish your ex’s character seldom makes any difference.

Take the time to learn the basics here. It’ll likely save you a lot of heartache and also give you some perspective on your own situation.

Contact Denial – What to do and not do

Contact denial is one of the most common matters dealt with in the Family Courts. It’s the most common reason a non resident parent reluctantly fills in the forms (usually a C100), pays their fee and sends it in.

The anatomy of contact denial

Right off the bat, let’s establish something fundamental.

Anyone denying contact between a child and someone who has PR for them without a court order preventing it is acting with no legal basis whatsoever.

Being the primary carer, resident parent, mum, dad, whatever doesn’t confer the right to tell someone who has PR for a child that they can’t see them.

The circumstance of how contact is denied varies however. There is no set pattern. Sometimes they haven’t met their child since birth. Or they had been permitted a sporadic and limited relationship which has ended. Often contact has stopped suddenly and without warning.

Why does contact denial happen?

And the justification for this? I don’t like your attitude. The kids don’t want to see you. You’re a bad parent. I don’t have to let you see them without a court order. I don’t like your new partner. My new partner is daddy/mummy. You’re not paying me enough cash. Or something else.

So…as a parent facing a scenario like this what you do?

Delay is the worst thing you can do if you are facing contact denialThe first step is do not delay. Doing nothing is just about the worst possible thing you can do. It won’t make anything better and it will quite possible make it worse.

In our experience things don’t get better on their own – they don’t `blow over’

Instead what happens is a  a status quo of no contact is set and the contact denier feels emboldened that they are able to continue with this course of action without problems. If you do nothing they’re right of course.

No one cares about contact denial apart from you

And the longer you leave it the more irrelevant any kind of previous relationship you had becomes. Seriously…the court won’t care that you were the resident parent and it’ll care less the longer you do nothing/write a letter/organise mediation/compose your latest symphony.

The moment contact has been denied address it. Organise mediation ASAP. Organise it. Don’t text your ex to see if she/he will attend. Because you won’t get an answer. Or they might be able to make it in 3 months time. Maybe.

If the place is open now (Google is your friend) stop reading this blog right now and phone them. If it’s out of office hours do it first thing tomorrow. If it ends up in court you’ll be required to attend a MIAM (a `Mediation Information Meeting) in any case. And besides it’s always worth trying on the grounds that court should be the last resort.

If (or when because more often than not it either fails or doesn’t happen in the first place, you’ll need to submit your form to start the whole process.

But the take home here? Do not delay.

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