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ukfamilysolicitor
ukfamilysolicitor, Solicitor
Category: Law
Satisfied Customers: 838
Experience:  Qualified Solicitor Currently specialising in Family. Also experienced in Corporate, Employment, Civil Litigation, Debt Recovery
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I married in Cuba in 2006 to a Cuban national. He joined me

Customer Question

I married in Cuba in 2006 to a Cuban national. He joined me shortly after our wedding in the UK. We had a son in 2007 but have been separated since 2009. My husband visa has not been renewed (I am French) and I do not know where he lives or works . I look after my son alone and never receive money from his dad.
I would like to have custody of my son but do not believe I can have his dad in front of a judge as he is now illegally straying in the UK. How can I do it ??
Submitted: 1 year ago.
Category: Law
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Thank you for your question.
I am a family solicitor and I will assist you.
The courts in the England and Wales have a 'No Order' principle. This means that the court should not make an order unless it considers making an order is better for the child. If there is no dispute that your son lives with you then the courts do not need to make an order.
This situation could change - for example if your husband was to seek to remove your son from your care or even threaten to do so - then you should seek an urgent order from the court for return of your son (if he has been taken) or a Prohibited Steps Order (if threats have been made).
A court would in these circumstances also likely then make an order to confirm that your son lives with you.
The Family Court would not determine whether or not your husband should be in this country - this would be for an immigration and not a family court. They could ask for his immigration status to be confirmed. This would come into play if your husband asked the court to make a child arrangement order to spend time with your son. These types of applications can sometimes be made by those with uncertain immigration status to help their immigration case - however a family Judge is likely to see the motives behind such an application - given that your husband has not seen your son for 6 of his 8 short years.
Kind Regards
Caroline
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Customer: replied 1 year ago.

I need to travel to south Africa soon but need some documents to be ableto enter. I cannot contact Myhusband in order to get him to write an affidavit. Can I not get full custody if he only see his son every second month and never pays for anything . ?

Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Thank you for your response and your positive feedback.
You do need the permission of your husband to be able to take your son abroad - as your son was married to you at the time your son was born.
If your husband wont give you this permission then you can ask the Court for a Child Arrangement Order to confirm that your son Lives with you. This would then enable you to take your son out of the Jurisdiction for up to 28 days each year without the fathers consent being required.
If you are looking to travel for longer than 28 days and the father wont agree then you also need to ask the court for Leave to Remove the Child from the Jurisdiction.
You should refer to mediation before making an application to the court. If you don't then the could could automatically reject your application. There is an exemption from attending at mediation if the matter is urgent - such as you need to travel soon.
The Court Form is C100 - send to your local family court with a fee of £215.
One such mediation service is www.nfm.org.uk
Kind Regards
Caroline