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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33529
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 a divorced father of three children aged 5, 9 and 11yrs. My

Resolved Question:

I am a divorced father of three children aged 5, 9 and 11yrs.
My ex wife and I have a residence order that was agreed through the courts that gives me approx 40% residence of my children with me which includes half of the school holidays except for the summer school holiday where we each have 2 weeks each of the 6 week break, the remainding 2 weeks falls back to the normal care schedule.
I now wish to make an application to the family court for variation to the residence order to change the school summer holiday residence such that the school summer holiday is split equally into 3 weeks with each parent. The reason for this desired change is for me to take my children to Canada to visit all of my close family (the children's grandparents, uncles, aunt and cousins). I belieive that this is in the childrens best interest to have quality time with close family in Canada (and in the UK should they visit).
I took the children to Canada last year to visit these relatives but had to return before 2 weeks to get the children back to their mother as that was what she demanded. Their mother was not willing to be flexible for longer stays and travel necessary to Canada.
I had hoped to take my children to Canada last year for what would have been 2 weeks and 2 days (my agreed 2 week holiday then travel back on what would have been my scheduled weekend) but my wife would not agree to this. As I had believed this to be reasonable and had already booked flights, I made an application to the court, representing myself, to allow me to do this. As I had already booked the flights (for economic reasons) the magistrates unfortunately took the stance that I had pre-decided the courts decision and decided against me, therefore I had to come back earlier than intended and return the children for exactly two weeks.
As my previous application was poorly received, in part I felt due to the court not taking my representation of myself seriously, I intend to get legal representation for this application. However this is expensive and before commencing with this application I wanted to ask:
1. How reasonable this application would be viewed by the courts.
2. How likely are the courts to make changed to existing residence orders.
3. How likely it is a court would make a decision in my favour to make the requested changes to the existing order.
Submitted: 1 year ago.
Category: Family Law
Expert:  Clare replied 1 year ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
For clarity - you wish to make this an annual event?
May I ask why you did not ask for this when the Order was first agreed?
Clare
Customer: replied 1 year ago.

Hi Clare,

Yes, I would like the change to be an annual event ongoing that would allow me to take my children to see close family in Canada, for at least two weeks, possibly every other year (depending on finances) but also for family visiting from Canada to spend time with the children whilst I am at work. My brother and his partner and my mother have expressed their wish to do this.

The terms of the summer school holiday residence was decided at the time as the two weeks for each parent due to perceived constraints of annual leave from work and finances of childcare. I must stress that CAFCASS recommended half of all the school holidays. At the time I did not know what my finances would be as we had not sorted this out and I did not have enough holiday to cover all the holiday so I reluctantly agreed to these terms. Upon reflection this was a mistake on my part and possibly my solicitor should have pointed out to me at the time the potential for future conflict particularly as my ex-wife is very entrenched in her position. Looking at it now I should have held out for the equal splitting of the summer holiday and paid for childcare for the week I did not have holiday for, but I did not foresee the disagreement that has now arisen.

Peter

Expert:  Clare replied 1 year ago.
Hi
Would you be willing to settle for three weeks every alternate year?
Clare
Customer: replied 1 year ago.

My strong preference would be for 3 weeks every year for simplicity for the children to visit relatives in Canada or for relatives to spend time with them here in the UK (and not be in other childcare arrangements).

Also I would state that the 3 weeks would preferably only be consequetive if we were going to travel to Canada as i respect that 3 weeks is a long time from either parent. On other years I would suggest alternate weeks or 2 weeks and 1 week.

Expert:  Clare replied 1 year ago.
Hi
What is the normal pattern of contact (outside of holidays)
Clare
Customer: replied 1 year ago.

Hi Clare

The normal pattern of contact for myself is alternate weekends (Fri, Sat and Sun nights) and a day in the week (this alternates between Tues or Wed depending on whether on not I have the kids for the weekend). Obviously my ex wife has the remaining time.

Customer: replied 1 year ago.

Hi Clare

For further clarity sake, I am wanting to make the proposed application for variation to the residence order such that I do not have to make an application to the court every year to extend the current 2 week arrangement for travel to Canada or to spend additional time with visiting relatives here in the UK.

Expert:  Clare replied 1 year ago.
Hi
My apologies for the delay.
It is not Unreasonable to want to go to Canada to spend time with family - and the failure of your ex to co-operate last time gives you clear cause for seeking a change in the arrangements
In addition shared care with each parent having half of all school holidays is not unusual.
Your starting point is to go and see a Mediator
www.familymediationhelpline.co.uk
Hopefully this will in fact enable you and your ex to reach an agreement without recourse to the courts - if not then you will need to make the applictaion
1.It is not Unreasonable to wish to take the children to Canada
2. it happens all the time
3. better than 50/50!
I hope that this is of assistance - please ask if you need further details
Clare
Customer: replied 1 year ago.

Hi Clare

Thank you for your reply.

Your opinion gives me some hope. However, my experience of the court process does not give me great confidence in its judgement, particularly judgements made by magistrates as will be the case for me. Can you tell me where you practice and if you have had similar outcomes in front of magistrates in your experience.

Also I have tried to persuade my ex to use mediation for us to negotiate this matter but she was not willing to participate as she said there was nothing in it for her. How will the court view her stance not using mediation?

Thanks

Peter

Expert:  Clare replied 1 year ago.
Hi
I am in the East Midlands and properly presented this would not be a major problem.
The failure of your ex to mediate would not find favour with the court
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33529
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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