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JimLawyer
JimLawyer, Solicitor
Category: Law
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Experience:  Senior Associate Solicitor
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My 2.5 year old daughter has suspected undiagnosed Aspergers

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My 2.5 year old daughter has suspected undiagnosed Aspergers and is very clingy to me (her mum) and I am about to divorce my husband but he said he wants 50% custody however I don’t believe this is in the best interests of my daughter. I believe she needs a stable home base with regular time with my husband and maybe 1 night per week initially with a view to increase based on how she feels.
Assistant: What steps have you taken? Have you filed any papers in family court?
Customer: Not yet
Assistant: Family Court normally sits in a local County and Magistrates' Court. Do you know the location of the court? If not, what county do you live in?
Customer: I live in the United Kingdom
Assistant: Anything else you want the Lawyer to know before I connect you?
Customer: NOTTINGHAM

Hello, this is Jim and I am a dual-qualified lawyer (UK and Republic of Ireland) and happy to help you today.

Your husband would need to apply to the court assuming mediation fails (mediation being compulsory before he applies to the court for an order concerning child arrangements).

If custody is to be considered then the welfare checklist of the child is relevant :

http://www.inbrief.co.uk/child-law/child-welfare-checklist

From the sound of it your proposals appear very reasonable and the court is likely to deny your husband joint custody - he will have a right to see his daughter and perhaps a few days per week or whatever is reasonable given the circumstances but from what you say I cannot see his request being granted for joint custody, certainly not in the short term.

I hope this helps – if you can please rate the answer by clicking the 5 stars (the top of your screen & then click “submit”), I can answer follow up Q&A's at no extra charge and I will be credited for helping you today.

Many thanks,

Jim

Customer: replied 8 days ago.
Hi Jim sorry I didn’t explain but we are still living together albeit separately and agreed we will separate. He is quite controlling and possibly also undiagnosed Aspergers/narcissist. I am still in the house with him because he won’t leave but I am starting legal proceedings in the new year once Christmas is out the way. However he has said that he will only agree to 50% split as he has looked after my daughter as much as I have and he won’t back down. The thing is because he’s quite controlling he has always been involved sometimes too much and he cannot provide her with the emotional support she needs as he lacks empathy and theory of mind. He is great with her for a few hours and doing fun things but I don’t feel he would be supportive or empathetic enough for her needs. Also she usually masks how she is with him but then sees me and has a major meltdown, it’s so hard... what do you think is the best course of action based on my current situation?

Do you think he would agree to mediation to try and come to an arrangement without having to involve the court?.

You would be your Daughter's primary carer and I presume you will stay in the home? Your husband to move out?.

Customer: replied 8 days ago.
No he won’t move out. He wants my daughter 50/50 so doesn’t see why he should be the one to move out. I wouldn’t be able to afford to buy him out. He would go to mediation but very unlikely he would back down so what would happen?

If he doesn't back down then you will need to issue financial remedy proceedings to determine the issues for the house and any other assets (including who lives there, etc). As the primary carer you will likely be allowed to stay in the property certainly until your Daughter is 18.

Assuming mediation fails or your husband doesn't agree to mediation then you will need to issue financial remedy proceedings and you would need to complete and send two completed copies of Form A (one copy is attached) to your local family court and pay a fee of £255 payable to HMCTS. If you are on a low income or have low savings you can ask the court for help with the fee here https://www.gov.uk/get-help-with-court-fees

The court will then list a first appointment and give directions for a financial dispute resolution hearing (FDR) where the judge will give their opinion on a likely settlement - which usually prompts a settlement at this stage. The court will ensure the parties make full and frank disclosure of their assets and liabilities to ensure the financial positions of you both are known and to allow the court to make a settlement decision. If the case does not settle, further directions will be given and a final hearing may take place if neither of you can agree to settlement terms.

To apply for a judicial separation, the site is here: https://www.gov.uk/legal-separation

To apply for a divorce, the site is here: https://www.gov.uk/divorce

And for information on a financial order: https://www.gov.uk/money-property-when-relationship-ends/apply-for-a-financial-order

Finally, if you need money before the divorce finalises you can apply for “maintenance pending suit”, which means you ask the court for an order that your ex pays you support to help with bills and so on before the case finishes. You will need an application form under Part 18 of the Family Procedure Rules 2010 and the fee is £155. You would need to attend a hearing for this.

You can apply for a financial order once the court pronounces decree nisi. The mediator will also have to sign off the Form A to say you have attempted it and you can then issue the financial claim.

I hope this helps - if you can please accept the answer and give me a 5 star rating (there should be a button at the top of your screen to do this), I can answer follow up Q&A's at no extra charge and Just Answer will credit me for helping you today.

Many thanks,

Jim



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Customer: replied 8 days ago.
Thanks Jim I’ll definitely rate you. Just confused as you said I’m primary carer but I won’t be if he wants 50/50 access will I? Or do you think it’s unlikely based on my daughters age and circumstances that he will get 50% access?
Customer: replied 8 days ago.
Can you confirm please??

Yes, sorry this is not live chat so responses are not immediate.

I very much doubt he would get 50%. Your daughter also has needs like you mentioned - the court is highly unlikely to disrupt her routine. Mothers have automatic parental responsibility (Fathers do if they are married) but the court will make a decision based on the child's best interests. The court will make an order in terms of what it considers appropriate - there is no law stating the child should live with the Mother, or should live with the Father. If she is very clingy to you and it would not be in her best interests to have her living with you for part of the week then like I say, it is unlikely - plus the fact she is only 2.5 years old (still very young).

If you have further queries then I am around tomorrow but hopefully I have addressed your question now.

Thanks

Customer: replied 8 days ago.
Ok thanks. Sorry last question What would you see as a fair access agreement to offer my husband? In your experience what is expected? Especially bearing in mind he wants 50%? And he’s controlling and manipulative so will likely con the courts that he’s a better parent than me!
Customer: replied 8 days ago.
Thanks so much and sorry for so many questions just so worried about this and keep being told different things on forums
You’ll always get a range of opinion if you look at various forums but like I say much depends on what is best for her - the parents have to get agree custody. If they can’t then mediation should be attempted and if that fails then the court is forced to intervene. I’d suggest he has her overnight at the weekend and that’s it, with contact arranged for say another 2-3 days a week so he has a meaningful relationship with her. If he is controlling and can’t offer the emotional support then that will go against him. The court wouldn’t agree to 50% if it would not be in her best interests or would do more harm than good - he may feel he has a right to 50% but equally there’s an argument that she should live with you for most of the time. I do have to go now and if you have further questions then by all means submit them to the site. Thanks
Customer: replied 7 days ago.
Thanks so much!