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UKfamsol
UKfamsol, Family Solicitor
Category: Family Law
Satisfied Customers: 560
Experience:  Very experienced specialist family law solicitor, qualifed in 1994
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I have separated from my partner and we have two children.

Resolved Question:

I have separated from my partner and we have two children. He has moved out of the family home and is living in a room in a friend's flat. I have bought him out of the house (£200,000) and am looking for him to have the children every other weekend. Is he legally obliged to do this? He is refusing to have the children saying that he has nowhere to put them up, but his mother lives on her own in a four bedroom house very close by. What is my legal standing on this? Could I insist?
He is supposed to be buying a home which would accommodate the children with the money he has had from me but seems to be only willing to look at one-bed flats in the most expensive part of town.
On a separate issue, he talks about demanding custody from me to have the children permanently himself, but I'm not taking this threat too seriously for the reasons above!
Can you help me?
Submitted: 3 years ago.
Category: Family Law
Expert:  UKfamsol replied 3 years ago.
Hello and thanks for your question.
I need a bit more info to be able to answer:
How old are the children?
Up to now, who has been the children's main carer?
Customer: replied 3 years ago.

Hi there,

Ruby is 10, Sam is 14. I would say we have shared the children's care - in time perspective - but I am the one who has organised the schools, playdates, birthday parties, sleepovers, presents, holidays, after-school clubs, sports, buying clothes, food, often Matt didn't have a clue where the children were if he came home from work to find them not in. We both work all the time, I work longer hours than Matt, we have an au pair. Perhaps the au pair could be described as the main carer...

Expert:  UKfamsol replied 3 years ago.
Hello again and thanks for the extra info.
When parents separate, they can make any arrangements they want regarding the children ie (a) which parent the kids live with and (b) how much the kids are to see the other parent IF THEY AGREE!
If the parents agree, there’s no need for any court orders.
If the parents DON’T agree, then either parent can apply to the family court for a child arrangements order, to ask the court to decide what should happen – but going to court should only be a last resort, as it’s stressful, time-consuming and expensive.
If you do decide to go to court, the court form you would need is C100, here:
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/c100-eng.pdf
Exactly what the arrangements for Matt’s contact with the kids should be, depends on what is right for your particular children – plus what you both agree – plus what is practicably workable for all concerned - including the children.
If the matter went to court, the court has to consider the welfare checklist in section 1 of the Children Act 1989 – but in essence it basically means that any contact arrangement can be agreed, or ordered if there is no agreement, as long as the children are safe, being properly looked after by which ever parent is looking after them at that moment, the children are happy, and the arrangement is workable.
The children’s wishes and feelings about what their contact should be with the parent they do not live with would also be taken into account - the older the children are the more seriously the court would take their views. In your case, Sam’s views will be very important, as he is 14 – but even Ruby’s views should be listened to.
However, for an arrangement to be workable, both parents have to commit to it.
In your case, your biggest hurdle is that Matt does not want to have the kids for one weekend per fortnight - even though that is a common arrangement for many separated parents, and even though the children might want to see him that often.
In my experience of over 20 years, it is pointless trying to insist that a parent have the children for more time than they actually want and are prepared to commit to. You would not get a court to make an order if a parent specifically stated that they did not want the children that much – and think of it from the kids’ point of view – why would anyone want to have to be with someone who does not want them there?
You cannot insist – either that the kids stay with him or that they stay with his mother.
Without agreement, your only other option is to apply for a court order – but no family court will order a father to have his children with him for more time than he actually wants.
He will not get custody given the scenario you set out – so please reassure yourself about that. Just ignore what he says about that. It’s up to him to apply to for a court order if you don’t give your consent to the kids moving in with him – but I think he’s unlikely actually to take that practical step.
My advice to you is to chill & back-off – when the temperature has cooled down, he may be more willing to negotiate. The agreement has to be ok for all 4 of you (but keep the children out of the negotiations – they need to be shielded from the acrimony between you if at all possible). You can negotiate either between the two of you, or via solicitor’s correspondence or via mediation. I know you’ve already tried mediation – but mediation might work with a different mediator - especially if you're now more open to different possibilities - and anyway the family court now requires the parties to have attempted mediation before it will consider an application to court.
Maybe Matt would agree to one weekend per month or one full day per month – plus half a day or a day once a fortnight, plus maybe an evening after school once a week? Try to be creative so that an amicable solution can be found.
Here’s where to find a local family mediation service:
http://www.familymediationcouncil.org.uk/find-local-mediator/
I think you would benefit from some face-to-face legal advice. Here’s where to find specialist family law solicitor:
http://www.resolution.org.uk/findamember/
I hope this helps and I wish you the best of luck.
Thanks and best wishes....
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