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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33283
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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I am non resident parent for my son, who is 15 in March. My

Customer Question

I am non resident parent for my son, who is 15 in March. My ex and I were separated in 2008 and divorced in 2010. There is no court order over children. We currently share care under a voluntary agreement, under which I have him 3 out of 4 weekends. I work full time, my ex works part time. She receives child benefit, and CSA from me.

My son wants to send more time with me during the week, and is suggesting 2 extra nights which is fine with me. My ex was initially OK with this as she was struggling with my son, and I am happy to do some more parenting, mentoring and help with his school work.

However, she is now blocking this on the grounds that she will receive less CSA money, or that residence might transfer to me if I have him more than 50% of the time. Purely financial reasons and no consideration of my son’s wishes or best interests. It is impossible to negotiate with her.

I’ve been told by a family solicitor that a court would hardly ever make a residence order at this age, as the child is generally old enough to make decisions (Gillick & Fraser, etc). So my son should be able to vote with his feet and live with me as much as he wants.

My question is: if she tries to prevent this, by threats or by force, are there any legal means of protecting his right to live with me? If it came to a crisis, for example, her preventing him from leaving the house, forcing him to come back, or bullying or terrorising him into complying, what procedures should I follow?
Submitted: 3 years ago.
Category: Family Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question.
My name is Clare and I will do my best to help you.
If your ex does try and prevent it then you can simply apply for a Residence Order.
The court will make the order of there is a reason to do so - as there would be in this case.
As a half way house you could suggest attending Family mediation (www.familymediationhelpline.co.uk) and using a mediator trained to work with children to resolve matters away from court
This article may be of assistance
http://www.cafcass.gov.uk/media/168195/cb7-eng.pdf
Please ask if you need further details
Clare
Customer: replied 3 years ago.

Hi Clare,


Thanks for the response.


Mediation is likely to fail: we have tried it before, and in the past she has broken the voluntary agreement which was drafted , and instated her own set of rules.


And is a Residence Order by a court realistic in this case, where the child is 14-15? I live 7 miles from my ex, and he can already travel from one home to another by himself on buses. Is there any precedence for this type of case?


I’m more concerned about putting a solid case to my ex: that she has to respect his choice of residence, and that she has no right to restrict his movement. What’s your view on this?

Expert:  Clare replied 3 years ago.
Hi
I appreciate it is likely to fail but you have to attempt it.
Yes a residence application is entirely realistic- the cut off age is 16.
The simple fact is that if your son moves in with you then there is little that your ex can do about it if he refuses to see her - but if you feel that he needs some protection then a Residence Order is what you need
Clare

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