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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12181
Experience:  30 years as a practising solicitor.
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My partner and his wife are four days away from thr Diet of

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My partner and his wife are four days away from thr Diet of Proof. There is a Minute of Agrement almost in place. The bone of contention lies surrounding contact with the children. My partner pursued a Contact Order which he was given in order to have alternate weekend end access and the first week of each school holiday period with his children. Since the order was made his job has changed which means that the holiday periods might not always work on the dates awarded to him (the weekends are not a problem). He asked to have the Contact Order recalled as he felt it was counter productive and too restricting. His solicitor agreed and also concurred that his wife's job (which had preciously been of a self emplyed nature) could have the same problems regarding the holiday period. His wife is against the order being removed and hasn't seemed to grasp that the order is to protect the father and his contact, not for her to have guaranteed time away from the children. She is now asking that if the Contact Order is recalled by my partner that a paragraph stipulating the terms laid down in the Contact Order is included in the Minute of Agreement. My partner's solicitor said that the inclusion of that clause would be worthless legally therefore he shouldn't contest it and allow it to be included. He is wary of signing his name to a document that contains these terms as he doesn't really understand where he would stand legally if he had to change a weekend or holiday period. Can you advise? Could his wife use the Minute of Agrement as a contract regarding contact in lieu of the Contact Order? If he decides to recall the COntact Order and refuses to allow the inclusion of the paragraph dealing with contact in the MoA and therefore the deal collapses, would he be forced to attend another hearing regarding the children's contact? His wife's Legal Aid only covers the financial matters - not the contact ones. Just for context - there were no contact issues for the first 3 years of their separation, but as soon as my partner pursued the divorce she started to limit the time he could talk to the children to between 5-7pm on weekdays and that is why the Contact Order was initiated (as it turned out, that specific issue was dropped from the Order by the two solicitors who agreed that he could have contact at anytime with the children up to 9pm and that the issues to be left in the order were the weekends and holidays which had never been an issue anyway but had been included to make the order 'worthwhile')
Thank you for your question.
It is stupid for him to be advised to sign up for a contact in a Minute of Agreement that he can't comply with. Whilst it isn't diectly enforceable it is evidence of what was considered to be appropriate and if not implemented could cause him difficulties in the future were the issue of contact to go back to court.
I suggest that the issue of holiday contact be addressed and be properly stated in the Minute of Agreement before it is finalised.
Happy to discuss further.
I hope this helps. Please leave a positive response so that I am credited for my time.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 3 years ago.

Theoretically, could my partner go to court in a months time and recall the Contact Order? ( I am not advocating that he should do this! I just want to understand the legal implications) If so what would happen? Would his wife have to pursue a contact order of her own?

He could ask for the contact order to be varied or recalled, he's, but the court would have to be satisfied that the de facto arrangements for contact were satisfactory and in the best interests of the children.
In other words, once the court has "interfered" in the issue of residence or contact, it will maintain an interest in the arrangements for the care and wellbeing of the children.
Customer: replied 3 years ago.
Both children of my partner are with one expressing quite firmly that they wish to live myself and my partner. We have put no duress upon the children regarding this subject. Their mother has stated to the eldest child thaft should she wish to relocate to us then she would not stand in her way. What are legal steps we would need to go through to prevent a child wanting to stay one weak here another weak there? At present both girls are very clear that they would like
to make aberdeen their home. I just don't know who we feasibly go about it. Can you advise? We have a current contact order that protects our time with girls which is alternative weekend visits and a week of each school holiday period. Could this br altered to represent his wife instead of him?
What does each child want?
Remind me of their ages?
Battery about to expire. I'll reply tomorrow.
Customer: replied 3 years ago.
Both children want to live in aberdeen with us. The youngest is newly eleven and is in her final year at primary school.. The eldest is 13 and is about to start her exams next summer (she will be entering year three).. Both have expressed this desire on deveral occasions and we have warned then that they really need to think hard before making a decision. Either way, the door is open for them up her. Their mother is not in a stable relationship and the children complain of
being bored, left on their own for extended periods of time (late at night) c and having to take part in active
I ties which only the mother enjoys (marathon running). They both say they feel very tense at home and are much more at ease when they are with us. We have two dogs which they love and cry when they say goodbye. We get flurries tests all week until they get back and the week their mother was due to have them for the October break, she called up her partner and asked if we could take then as both girls were crying to come back.
I don't know legally where we stand as we had initially wanted to go for full custody of the children when the divorce was pursued but all the advice we got told us to stay away from gpdoing that as unless the wife was a heroin addict or severely putting her children at rusk it would laughed out of court.
There have been several instances involving child protection with his wife when she tried to comment suicide in the house while the children were there. She also confiscated the girls iPhones so they couldn't contact their dad. After spending 13 hours trying to get gis wife to assure him that the girls were safe he called a local police officer to round and check. They were fine. Later the girls told us they had been forced to ignore all messages from their father. She was working as a childminder when the child protection were called and she is niw working in a primary school. We have documented evidence of her drink driving to collect my partners children and of taking a sick child and remiving the other to go to a hospital appointment in Dundee. A child minder had been found to stay with the children until she got back from thr hospital and decided to cancel her and just take the children (bearing in miffed that we would then be ferrying this sick child to Aberdeen) where was the logic. ?her capabilities have been raised in the community before in regards ***** ***** children and hoe frequently they are left on their own. Also one of the babies she was childminder had no clothes on and was pooing and peeing all over the house.
From your narrative I think that you would have a good argument for a residence order in respect of the children. Note that there is no such thing as "custody" or "access". These are old terms which had the legal effect of depriving the non custodial parent of his or her parental rights.
Nowadays that doesn't happen automatically. The court can grant a residence order specifying where the children's home is to be and a contact order specifying th nature of the contact that the children are to have with the other parent.
If the issue of residence or contact can't be agreed then the court action will have to be amended by your partner's solicitor so as to bring this issue before the court, if it isn't already in the written pleadings.
Whoever previously advised that you would be laughed out of court by making such an application was wrong. Also note that the children are of an age that their wishes would be taken account by a sheriff. In fact, when a child is 12 or over the sheriff has a duty to take account of the child's wishes.
I hope these comments are useful. Please leave a positive rating so that that I am credited for my time.
JGM and other Scots Law Specialists are ready to help you