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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9977
Experience:  30 years as a practising solicitor.
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The MOA has been signed by the relevant parties. I had to

Customer Question

The MOA has been signed by the relevant parties. I had to sign an affidavit saying that the children had a great relationship with their father. He has a contact order whereby he muct be given the children from 6pm Friday unti 6pm Sunday and for stipulated weeks duting the holiday period . We have had continual problems with our COntact order either being altered to suit her plans or us simply not being told about certain activities the girls do within the commmunity.on weekends when they see their father. She had been calling frequently - a mode of communication she insisted was removed from the MOA and we initially were polite and took her calls.Now have said that we feels it contravenes the intetion of the MoA and therefore as she suggested, all comms go via agents. Our bigger issue is that tinight my partner had hi usual call with his daughter and she was happy and cheerful about her upcoming carol concert, We live 100m from their mother so logisyically this is quite tricky. Sophie wasn;t clear what time the soe began so we called the organiser. Once I got that clarified I texted Sophie to ask her to cal me back . After half an hour I decided to call the house phne to ask to speak to Sophie but the phone was just picked up and hung up with no speech. Approx five mis later Sophie Facetimed her dad in obvious distress and tears and said 'hi'. As soon as she finished that word his wife burst onto the screen yelilng obcsenities and making threatening remarks in front of Sophie who, by this stage had her head in her hands and was sobbing deeply I hung up the Facetime call as soon as I realised what was happening. Five mins later a still very uset 11 year old called me again and I had to try to calm her down and explain that none of what had happened that night had been her fault. \it was extremelu upsetting as this is just yet another example of the instability of the woman and her lack of control. Meanwhile her 13 year old sister is watching all this. We had been advised not to pursue residency unless we had hard proof that the mother was a junkie or threatening them with butchersknifes etc. Our concern is the far more dangerous emotional and trust damamge that is being impemented. We need to find a way at this late stage to either halt the divorce even though the MOA is signed as there are considerable concerns about the chilgrens welfare or do we pursue her through the courts for residency. This nightmare has been going on for 4 years and these 2 children are nervous wrecks. Their conversations are listened into and then they are nade ti write the details of the conversations down for her solicitor. They are aware that is wha they re for so they have said they find it too stressful to talk to dad as fights often occur after they have spoken to him between the girls and their mum How can the law put the fear of God up her to stop this? What are our options? Mediation and placating letters have failed big style

Submitted: 1 year ago.
Category: Scots Law
Expert:  JGM replied 1 year ago.
Thank you for your question.You don't have to stop the divorce where there is a separate contact order. And in any event it is always open to either parent to go back to the court and seek an order in respect of the children. The mother clearly has issues, perhaps about you being the point of contact for the daughter on this occasion, as opposed to the father, that is only my suspicion. In a high percentage of cases such issues settle down after the divorce comes through and the parties realise that they simply have to get on with it.If, however, you think that this will not happen and that there are going to be longer term issues, then your partner can apply to the court for a residence order. Ultimately such a case is likely to go to a proof and the sheriff would have to make up his mind as to what is in the best interests of the children.Happy to discuss further. I will be back online later today.I hope this helps. Please leave a positive response so that I am credited for my time.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9977
Experience: 30 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi = Sorry, I was writing in all different tenses as am typing for my partner, so sometimes it looks like I am talking and at other times it sounds like I am third party.

To be clear, I am not the point of contact with the girls. There father is. I occassionally speak to them when they Facetime, but I dont answer their calls when their dad is busy or anything like that. I have not communicated with th mother but I witnessed her behaviour myself on the ipad screen and was genuinely disgusted. It was totally out of control, raving and obviously upsetting the 11 year old. I have never been a point of contact for the girls as their mother will not allow it. SHe will not give any reason as to shy she wont.

Expert:  JGM replied 1 year ago.
Noted. It still demonstrates behaviour which would call into question her acting in the best interests of the children.
If her behaviour does not change then I would seriously look at the possibility of a residence order.
Customer: replied 1 year ago.


Things are escalating daily. His wife has now said that she will expect my partner to pick both children up tonight for the full contact weekend. She is essentially trying to force him to deal the concert that the youngest daughter has on the Saturday afternoon. The implication being if he doesn't take her then I suppose he looks like the bad guy. He was rushed to hospital today after I called 999 at just after 8am with a suspected heart attack but was discharged at 2pm after the doctor concluded from the test results that he had suffered a major panic attack that made his blood pressure drop radically. When this info was relayed to his wife via her solicitor she implied that he was lying. We have provided our solicitor with the screen shot of the 999 call details showing the call lasted 5 mins, the name of one paramedic and the doctor who tested him at the hospital.

My partner spoke to his eldest daughter and explained a little of what had happened this morning and explained that he would be unable to drive this evening to get her (as he had originally hoped to do) but would collect her at 1030 tomorrow morning. He said that he would leave the youngest in the care of her mother to allow her to do the concert. He then relayed this info to his solicitor. His wife has said that he must pick both girls up at 1030. This would make no sense as the youngest's concert is from 2pm-4pm which means we would not get back to our home until roughly 7pm. The girls leave the next day to make the journey back with their father at 3.30pm. This would be tiring for the girls and also for my partner who has been advised to rest this weekend and take a couple of days off work next week. Our worry is that we turn up tomorrow to collect the eldest to find the mother gone and us being forced to take Sophie or worse, that there is a scene caused by their mother. We will take the youngest and take her to her concert if the mother does leave her in the care of the 13 year old as we do not want either child to suffer. Where would this stand legally as far as the mother leaving the children alone that morning until we arrive (if that s what we suspect she might do)?

Secondly, my partner now wants out of the signed Minute of Agreement as the situation with the children ( which is not included in the MoA - except the CSA payment and his offer to pay for all extra cirricular activities and needs other than food for the children) is not dealt with. Obviously his concerns about the children's welfare have increased massively over the last several months. Can he withdraw from the signed MoA if he has just cause regarding the children? Or is he now locked in?

Many thanks in advance

Expert:  JGM replied 1 year ago.
He can't withdraw from the Minute of Agreement. The issue of contact is dealt with separately and realistically withdrawing from the a Minute of Agreement would be a breach and would undo what has probably been a hard and fraught journey. It would probably do more harm than good although your own solicitor would be a better judge of that.
In respect that she is completely uncooperative, my advice has to be that the contact order be followed to the letter with no variations or agreements to vary. That is the only way to deal with someone who will be the first to cast up any issues about your partner whilst at the same time wanting things her own way. By sticking to the letter of the court order she can't do that.
As regards ***** ***** younger child in the care of a 13 year old, this is legal provided that the 13 year old is mature enough to be left in charge. There is no specific age for this.
Happy to discuss further.
Customer: replied 1 year ago.

Hi Thanks for your advice. We thought that would be the case regarding the MoA ( and I certainly wouldn't want to go through that fiasco again! )

I assume that if the 13 year old was left in charge of the 11 year old over night without an adult present that would present a different case?

My partner's intention is to stick rigidly to the order that he asked for. He has tried to accomodate the various social activities that the children may be involved in down in their local area during his contact weekends but has now concluded that, due to the lack of cooperation of his wife, that the children will have to be told that no parties etc can be attended or accepted when the are due to spend their contact time with their father 130 miles away. It is a shame as it is the kids that lose out but some kind of stability has to be put in place now.

Should my partner decide not to have the craves changed at this stage in relation to the children's welfare/residency and the divorce was granted where would he stand if in a years time he brought up the issue of welfare/residency in a new suit? Would the court only accept evidence that occured post divorce or would historic incidents still be relevant? His fear is that if he does not change the craves now that the law would say that he had no concerns about the children's welfare at that time, therefore why only bring it up now? Where does the law stand on this?

Expert:  JGM replied 1 year ago.
Overnight would be very different from a couple of hours during the day, yes.
A party can apply at any time for a variation is residence or contact. Clearly, any present issues would become less relevant in the future and if they are substantial, and from what you say they are, they should be raised now otherwise the wife's lawyer could make the argument that no objection was raised at the time. There could of course be a counter argument that the variation is sought as a result of an accumulation of issues but a sheriff would attach most weight to the here and now rather than dwelling on history, especially where the history relate to what is typically the most fraught and difficult time, ie, the period between negotiating settlement, residence and contact and the divorce.
As I think I mentioned in an earlier narrative, almost invariably, things settle down after the divorce is granted.
Customer: replied 1 year ago.

Thank you so much for your help with everything. You have been amazingly helpful and clear in your responses.

Expert:  JGM replied 1 year ago.
Appreciated, thank you.
Customer: replied 1 year ago.

Good morning,

  • Firstly let me thank for you all your sound advice and guidance you have given us over the last few months. This is the partner, by the way. The one with the wife. lol.

As you are aware the MoA has been signed by both parties, with her agents awaiting my lawyer’s Minute for Decree (MfD) to finalise the divorce. Do you know how long I can delay sending the MfD to the court, can I hold off indefinitely whilst I decide how best to deal with my very real concerns over the girls?

Allow me to update you on recent events. Last Friday I had an episode which resulted in me being taken to hospital with a suspected stroke, this happened on the weekend I was due to have my kids. The doctor’s advice was that I should have as restful a weekend as possible. However, their mother still expected me to drive down and collect the girls the following morning. I decided that I was still too unwell to travel and told the girls that I wasn’t able to travel as the risk was too high. This is further example of her utter lunacy and in ability to grasp her responsibilities are regarding the contact

Over the past few years I have evidence that demonstrates her instability. I have headlined them below. I hope they give you a flavour of what I am dealing with.

History of domestic violence against me over 17 years, which was physical for long periods and psychologically/emotional for the entire marriage.

October ‘12 – she threatens suicide. Her mother calls the police, child protection are called as are the Samaritans. A friend of hers who is a nurse recommends that she is sectioned due to her instability.

July ‘13 – Local mother calls me to advise that she has concerns over my eldest stating that she looks so tired and lethargic.

Late ‘13 – My eldest records in her diary that she wants to move to Aberdeen and is deeply unhappy and is in an almost constant state of conflict with her mother.

March ’14 – She uses my kid’s phones to send abusive texts to me. I know that both kids see these texts are they admit to it and my eldest records her hurt in her diary.

July ’14 – She forces both girls to write down my conversations with them to hand to her lawyer. Both girls admit that they were told that this would be used against me.

October ‘14 - Sophie states that she wants to move to Aberdeen to live with us.

Dec ‘14 – She rants down the phone with my 11 yr old sitting next to her regarding a concert my youngest was performing at making claims that I have been persistently calling her when it has been her that has contacted me (despite insisting that all references of direct contact be removed from the MoA)

Dec '14 - After my hospitalisation I was advised not to drive. I spoke directly to the cildren about this and my youngest stated that her mother had said - and I quote - 'This is your father's contact weekend. You are his responsibility. I dont want you here this weekend. You are your father's problem'

Bot***** *****ne is this, I need some leverage over her to try and prevent her from further acts of, what I consider emotional abuse, particularly towards the girls. My question is this, what can i implement that is an effective ‘sword of damocles’ over her? Can the threat of taking her to court over residency as a result of existing and historic abuse, that social services would be called to investigate allegations made by me, that I will seek a child psychologist to interview the girls to determine evidence of abuse and control, that I will cite all instances of control and abuse like the threatened suicide in October 12 and other time lined examples?

What is your advice?

Expert:  JGM replied 1 year ago.
Do not instruct a child psychologist off your own back. That is never constructive. Have your solicitor ercord the events of the past few days in writing to her solicitor with a comment that she has not acted in the best interests of e children, that she has in fact acted against the interests of e children and your position is that you are considering your legal position.
Have your lawyer express your disgust at her behaviour. You will have to decide yourself whether you are going to go for a residence order now or wait and see how things develop. I have commented on this before. My own view would be that you seek a residence order now and according,y should give notice that that is what is going to happen.

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