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ukfamilysolicitor
ukfamilysolicitor, Family Solicitor
Category: Family Law
Satisfied Customers: 1200
Experience:  Divorce, Finances, Children, Domestic Violence, Care Proceedings
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There is a court order in place that states the children

Customer Question

There is a court order in place that states the children reside with dad. Dad and mum have set days in the court order that should mean that they have the children every other weekend following by the week. Dad claims all the benefits and so mum cannot claim for the days she has them because of the wording of the court order. The court order states that Dad should support mum financially for when she has the children. Dad is only having the children now for 8 days during school term times a month. Mum has them the other 22 or 23 days a month and during all school holidays and every weekend is included with no financial support. This is financially breaking. This situation is unusual because it is normally the person that the children lives with refusing contact. In this case the contact is set in stone so if mum was refused contact by dad she could hold him to it. Instead he just claims the money and leaves the children with mum. Can we take this back to court to get the court order changes or put in for residency or what can we do legally so dad sticks to the court order.
Submitted: 29 days ago.
Category: Family Law
Expert:  ukfamilysolicitor replied 29 days ago.

Hello

Welcome to Just Answer

I am a Solicitor and will assist you.

Please may I ask:

- when was the court order made?

- how old are the children?

- how long has he been leaving the children longer with mum?

- why was the original order in favour of him?

kind regards

Caroline

Customer: replied 29 days ago.
The children are 7 and 9. Mum left the home and children with dad. Social Care was involved and they said the children were settled with dad, even though they had been residing with mum for three months. Court order was put in place in March. Social Services wrote the report in favour of dad but agreed that they reside with dad but contact should be 50/50. But because dad was always threatening mum with not seeing children they set it in days which worked out that they would have the children every other weekend so Monday through to Monday each. Solicitor said that the judge tends to go along with what social care recommend. Social care never followed the process correctly and the report was written without taking the children's wishes in to account as they never visited and said that because the children had been with dad since August 2016 they were settled despite the fact that the children had actually been with mum since the November. The solicitor said to move house to ensure that they had a bedroom which mum did but they didn't look. Social care have asked us to seek legal advice as to what we can do and they will support us in their report to go back to court. It a bit messy I know. Mum and dad agreed to the court order, but the solicitor and social worker thought that he would not stick to any agreement which is why they set court order up stating days, They said dad and mum had to have a weekend each to ensure quality time is spent with children and it would enable mum to claim for the days that she has them. Child tax credits said they cant pay to both and because the court order works out that dad has the children two days more he gets it. However, he don't have um. Says she the mum and should look after um. It prevents mum from moving on with her life because she can't get a job because she would have to pay childcare with no financial support. I questioned the social worker to explain how she came to the assumption that the children were settled when they had not even been there. Mum and partner are really struggling and there is another child involved who is 13 not of the same dad but lives with mum and partner. Financially they cannot maintain this situation.
Customer: replied 29 days ago.
Basically do we just go to court and fill in a form to apply for a residence order or can we go back to court and get the wording changed to the court order or can dad be done for not sticking to court order and we contact court or police
Expert:  ukfamilysolicitor replied 28 days ago.

Hello

Thank you for your response.

Please do accept my sincere apologies for not being able to respond to you sooner. I am normally available within a few hours.

I understand why the order was agreed now on the basis of the previous report. Its not possible to challenge that report now but that doesnt make a difference as the report was still a positive one so far as mum being able to care without concern.

It sounds to me like the father wants to 'have his cake and eat it' in relation to on paper caring for the children and receving the benefits for this but in reality keeping the money and not caring for the children or meeting their school expenses.

I am glad to hear that social care are still aware of the case and the current position but they cannot change the court order to reflect what is actually happening and this something that the mother is going to have to do.

Before the mother can apply to court shes going to have to attempt mediation with the father. This is a prerequisite before she can apply to court or the court will reject her application. I appreciate that for the benefits they are going to want an order and I doubt that the father will agree at mediation the change to the children on paper living with the mother so in reality thi case is going to have to go to court. I suggest a chat with the mediator as they may be willing to sign the for so that mother can apply to court given the history.

I also have to warn you that given the fathers behaviour that mediation / court papers and the threat of losing benefits might make him have a sudden interest in the children and going back to rule in respect of the court order. This is a risk and theres nothing to stop him doing this in the interim but the timing can be well explained at court.

You need to seek to Vary the Child Arrangements Order.

You do this on Form C100.

There is a court fee payable of £215 when the application is issued but the mother may be eligible for a reduction / waiver depending on her means.

It needs to be detailed in the application:

- the previous order made

- the reality of who is caring

- the father is claiming all the benefits

- the father wont support the childrens needs financially

Please do let me know if I can help you further

kindest regards

Caroline

Expert:  ukfamilysolicitor replied 25 days ago.

Hello

I note that this question remains unrated. Your feedback is important to me.

If I can assist you further or clarify anything for you then please do not hesitate to ask.

kindest regards

Caroline