Unless you have Doc Brown as a friend `child custody' will never mean anything.

A very good reason why you shouldn’t ask for Child Custody

If you are going to be dealing with the family courts make sure you don’t ask for child custody. There’s a good reason for this.

`Child Custody’ has no legal meaning in England & Wales

In fact it has had no meaning at all since 1989 when the Children Act became law. That’s when the Berlin Wall came down, the first GPS satellite was launched and Back to the Future II was released. Great Scott!

`Child custody' went out in the same year the Berlin Wall did.So walking into a court and asking for Child Custody is on a par with trying to book a Pan Am flight to take you to East Berlin. At best you’ll get strange looks and told there is no such thing. At worst you’ll be sent away with nothing.

It’s no surprise though. The term is used elsewhere. But not in England and Wales.

Using the term `Child Custody’ is vague too. What does it mean? Does it mean whoever gets it doesn’t have to let the kids see the other parents at all? Or stay overnights? Or is able to call the police and get them back at any point (you can’t do that with modern orders by the way).

You can hardly blame the court if you aren’t clear about what it is you want. You’ll likely be asked as a litigant in person but you’ll also probably get something you didn’t expect and don’t really want.

Be clear about what it is you want and what the court can and can’t do.

Unless you have Doc Brown as a friend `child custody' will never mean anything.Don’t ask for something the court can’t order. If you want `residence’ (another term that no longer has a legal meaning but is snappier than describing who the children live with’) know what it means. Hint. It has nothing to do with how long your kids are with you and the ex.

If you want contact (again…a redundant term but like `residence’ still understood by the court) make it clear. And understand that the two are independent of each other. And complicated by the fact that being a resident or non resident parent again has no bearing on either of the previous too…

So be clear what is you want. Make sure you know what terms to use and not to use. If you don’t and you don’t like the result it’ll be no surprise if the unexpected happens.

/sharedcare?Justpartofthemerrygoround?

Why a presumption of 50/50 Shared Care is a waste of time.

…a story from the near future when there is a presumption of 50/50 Shared Care:

`…newly appointed President of the Family Division Sir James Holman has issued new Practice Guidance in relation to the quantum of time children spend with their separated parents. All courts have been advised that any parent wishing to depart from a routine that provides children with equal amounts of time with each parent will be required to demonstrate why this view is in line with the paramountcy principle. Fathers rights groups hailed this as a major step forward, whilst Women’s Aid…’

`Hello, Family Law Assistance – how can we help?’

50/50 shared care? Just part of the merry go round?`Hi there. I’m looking for advice. I separated from my ex 3 months ago. She won’t let me see the kids. I’ve told her that the law means they are meant to be with me for half the time but she won’t listen’.

`Have you tried mediation? It’s always best to try to avoid court and besides it’s a requirement if you are going to make an application.

Contact National Family Mediation and organise to meet them. You’ll attend a MIAM. If mediation doesn’t work you’ll need section 14 of the C100 signed and stamped in any case’.

`Already done that. I went to the MIAM’.

`How did it go?’

`She went to the first one but said she wouldn’t agree to anything more than the kids seeing me on alternate weekends and mid week contact. Because there’s 50/50 Shared Care now isn’t there? She didn’t listen and refused to go to another session’.

`You’re right. There is a presumption of 50/50 Shared Care now’.

50/50 Shared Care. Would it change anything?`OK thanks. She told me I had committed DV against her and abused the kids which is why she won’t agree to anything else. Will the court ignore that?’

`Allegations made will either be ignored, or you’ll be asked about them. Possibly order a Finding of Fact’.

`Will that slow things down? Will I get my kids half the time until then?’

`It’s unlikely at this stage. The court has an obligation to investigate allegations. Since the changes to Practice Direction 12J were made last year however contact may be difficult for the moment’.

`I was told that if the kids are with her and not seeing me it’ll make things harder for me to get 50/50 is that true?’

`The court has to work in the best interests of the child and if they’ve not seen you for a long time it may want to work on a schedule of increasing contact…’

Sound familar? How would a presumption of 50/50 work?

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

Beach HolidayHoliday 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!

PolicePC999: 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.

Mansion BuildingIt 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.

When you should ask for 50/50 shared custody

I can answer this in one word.

Never.

I can categorically state this is the case for a few reasons. They being:

  1. There’s no such things as `custody’. It’s a term that hasn’t had legal meaning since Milli Vanilli were in the charts; if you’re too young to have heard of them that should tell you something.
  2. You’re probably confusing the rights and responsibilities conferred by PR (Parental Responsibility) with where the kid in question spends his or her time.
  3. You may as well tell the court/CAFCASS/social worker/the ex’s solicitor `It’s my right! I’ve got a legal right!‘ Try THAT and see what reaction you’ll get (hint: It’ll probably be one you don’t much like).
  4. Because there is more than one way to skin a cat.

ColorGuys…this is a HUGE red flag. As well as being seen to shout the odds about your rights you’re also demonstrating said rights are more important than the kids (dividing them up like the furniture or the CD collection as the old phrase goes), that you don’t know what you’re actually asking for and that you know nothing about the actual process.

Go ahead, all guns blazing and there is a good chance you’ll be asked all about it when that nice barrister is trying to convince the court that the judge shouldn’t make an order for that by asking you questions that’ll make you look nasty, selfish, stupid or hopefully (for him/her) all three. You’re making it easy for them (or me if I am helping your ex).

With this in mind the `take homes’ from this post are simple:

  1. Learn the terminology. It’s not about custody’ these days. It’s not even about residence’. It’s about `Who the child lives with’. They are just about the same thing, true – but you want your message to be clear and not open to (wilful) misinterpretation.
  2. Understand division of time and PR are like chalk and cheese. Where a child spends his/her time has absolutely nothing to do with rights and responsibilities under PR.
  3. Prove what you want is in the best interests of the child. The most common thing parents say when asked why this is the case is `Because it will show the kids both parents are equal’. The court won’t accept this. Don’t waste your time saying it. Seriously.
  4. Be patient. If this is your ultimate goal understand that it will take time – especially if there is no contact at all now.

I’m not saying I don’t think shared parenting is a good idea. Quite the opposite. But if this is going to be happen, avoid the obvious pitfalls. There are enough of those without making basic mistakes.

`Resident parent' doesn't mean `First prize'

What does being `the resident parent’ mean?

What does this actually mean???

Every time someone has told me they absolutely, positively have to be the resident parent I have always asked `What will a residence order allow you to do that you can’t do now?’

I usually get a blank stare. Or told something that isn’t true. Often that’s by the other side’s solicitor or barrister. If it’s a parent it’s usually something about being able to call the police and get the kids back if the non resident parent refuses to hand them over.

Problem is that it’s not true – if you want the thin blue line to get involved you’ll need an Emergency Protection Order (form C11) – covered in Section 44 of the Children Act. Or they’ll have to be convinced the child will suffer significant harm if not removed (that’s section 46). Most they’ll do (or the most they should do is a Welfare Check).

Pro-tip: Don’t think about trying to use these except in very, very extreme circumstances.

A resident parent has precisely no powers to demand a child is with them other than going through the courts – they are in exactly the same position as a non resident parent. Which is why if you phone 999 and demand your children are returned you’ve got a good chance of being told to speak to your solicitor and/or take it to court.

So in light of the above I present you with a comprehensive list of things that a resident parent can do that a non resident parent can’t. Here we go.

  1. A resident parent can remove a child from jurisdiction for up to 28 days without the permission of the non resident parent.
  2. That’s it.

A non resident parent does need permission of the resident parent.

Many people see resident parents have `won' first prize in a court caseWhat’s the point then? Let’s be honest – it’s a nice title innit? You’re the RESIDENT parent. The main one. The boss. It doesn’t matter that little title means almost precisely nothing – doesn’t affect when your kids are with you, who is in charge, education, medicine or anything else like that. That doesn’t mean that many of the people and agencies you deal with will agree with me on this…but that’s their ignorance and not based in law.

So what do you do when you are faced with an ex who demands they get this title? Ask them (or their solicitor) What harm will the child come to if this order isn’t granted?’ Expect to be told something along the lines of It’s a well established principle’ (rubbish). `The law is clear on this‘ (Ask them which law – there ain’t one). `It reflects the reality on the ground‘ (irrelevant). `The order HAS to say who the child lives with‘ (no it doesn’t…).

The No Order’ principle states the court must start from the position that no order shall be made unless the court consider that doing so would be better for the child than making no order at all’– or in other words `Prove that an order is needed’.

Of course the `go to’ most solicitors will use for this is to say that such an order will make the primary carer (usually Mum) feel more secure if such an order is made which of course will impact the children.

So consider this. While a residence order is of little significance or relevance to you as a contact parent it is often the case it means a great deal to the primary carer.  With this in mind you can agree…or disagree that such an order should be made. You may wish to agree to such an order on the proviso that your goals for contact are agreed to. Otherwise you’ll have no option but to point out there is little benefit for such an order to be made.

(One final word – they’re not called `residence orders’ any more. It’s about Who the child lives with’. Same thing, different name – but `residence order’ is a little easier to say and everyone still calls it that in court).