Divorce and children: your contact questions answered

Children|September 8th 2013

Yesterday the head of our dedicated Children’s Department, Mark Christie, answered some of your recent questions about child maintenance. Today he answers your questions about child contact and other child-related matters.

As before, the questions appear as they were typed. If you have a question and cannot find it here, leave a comment and we will try and point you in the right direction. Alternatively, make an appointment at one of our six offices in London, Yorkshire and the North West (contact details here), to attend one of our friendly legal advice clinics, which run every lunchtime and provide free legal advice.

 

Alcoholic, weed smoking ex-husband wants more access to children: UK law

Abuse of alcohol and other substances is sadly on the increase and is a problem that can often feature in cases involving children in the UK Courts.  The Court’s view is essentially that abuse of these substances is incompatible with responsible child care insofar as it undermines a parent’s ability to properly and safely look after a child.  If your ex-husband denies substance abuse the Court can be asked to order certain tests which will prove whether or not he is abusing these substances.  If it is shown that this is a problem and the Court takes the view that he presents a risk to the children, then the Court can refuse him contact (formerly known as access) or only order indirect contact (i.e. by email, text, letters etc.) or ensure that contact is supervised so that it is safe.

 

Can a child who was born in Australia move with her mother who is a British citizen to England to stay for good?

If the family is living in Australia then Australian Law will govern any intended relocation to the UK.  Under English Law the father’s consent would be required and if this was not given then an application can be made to Court for the Court to decide whether or not it is in the best interest of the child to relocate.  The legal principles are likely to be very similar in Australia.

 

Can I give limited access for my children to see my ex-husband’s new partner?

You would need to agree with your ex-husband the terms of any contact between him and the children and if an agreement cannot be reached then you could try referral to mediation to see if this can assist in resolving issues.  If not an application to Court may be necessary.  Contact can be limited or subject to certain conditions.  Generally speaking, conditions to limit contact between your children and your ex-husband’s new partner would only be justifiable if there are good reasons.  The Court recognises that couples move on and form new relationships and that new partners will then have a relationship with the children.  This can only be objected to if the new partner presents some kind of risk to the children or there are other justifiable reasons.

 

Can you stop a violent ex from seeing his child?

In a word yes, though the ex would have a right to make an application to Court for a Contact Order under the Children Act 1989.  The Court would then have to decide whether he/she presented a risk to the child.  In some cases someone who has been violent in a relationship may still be a good parent provided he or she has not been violent to the children or has allowed the children to witness violence between the parents.  In some cases contact will be allowed where there has been violence but only in circumstances where there would be absolutely no risk to the children.  Conditions can also be put in place by the Court to minimise any risk to an absolute minimum i.e. by having the contact supervised at a Contact Centre or by some third party, or by contact taking the form of indirect contact (i.e. by way of emails, text and letters etc).

 

Do we have to take child to court for a first appointment?

I presume you are referring to proceedings concerning the child?  The answer is that you do not have to take the child to the First Appointment at Court nor indeed to any other Court hearings.  Depending on the age of the child, then if the Court orders Cafcass (Childrens and Family Court Advisory Support Service) to prepare a report the Cafcass Officer may speak to the child provided he is of an appropriate age.

 

I got a letter from solicitor about ex-partner wanting to see my child more, should I ignore?

I believe it is rarely in your best interest to ignore a letter from a solicitor as it can lead to Court proceedings being issued unnecessarily.  I would advise you to seek your own independent legal advice about your ex-partner wanting to have more contact and that you do so from a solicitor who is a member of Resolution – First for Family Law, as he/she will specialise in family law issues.  If you simply ignore the letter then this is likely to trigger an application to Court and you may have lost the chance to reach an agreement.  Having said that, even when Court proceedings are issued there continues to be an expectation that agreement should be reached between the parents and so avoiding the continuation of any Court proceedings.

 

If a husband has got a non-molestation order towards his wife, can he still meet the children?

It may be possible for your husband to see the children notwithstanding the Non Molestation Order made against him if he presents no risk to the children and contact is agreed upon.  Sometimes a Non Molestation Order can be worded so as to allow contact for the purposes of exercising contact to the children.  If necessary contact can be structured in such a way that there is no contact between you and your husband i.e. it is supervised at a Contact Centre or by some third party or handovers are dealt with by a third party.

 

I have a contact order for my child but my ex is refusing to bring her back to me in the UK, what can I do?

If your ex is refusing to comply with the Court Order and allow you contact then you may have to go back to Court and apply for enforce the terms of the Contact Order.  If he has wrongly removed your child from this Country then you have the right to make an additional application to the Court in this Country for a Specific Issue Order (for the return of your child) and/or a Prohibited Steps Order.  The Court has powers to enforce compliance with its Orders including the power to order a fine, unpaid work in the community, the payment of compensation to you, a transfer of residence, and in the most serious cases, a term of imprisonment.

 

If I am requested to court by my ex-partner’s solicitor regarding children, do I have to go?

Yes you should attend Court preferably instructing a solicitor to represent you if you are in a position to do so so that your legal rights are protected.  If you do not attend Court then if the Court is satisfied that you are aware of the proceedings, but refused to attend, a Judge can make such Order as he/she feels appropriate in all the circumstances in your absence.  You cannot however be compelled to go to Court if you do not wish to do so.  I would recommend you seek advice from a family law specialist.

 

As I have a child under 16 and have to be separated for two years before I can get a divorce, when should I advise my grounds for divorce are adultery?

Just because you have a child under 16 does not mean that you cannot rely upon any of the other facts to establish that the marriage has broken down irretrievably so as to obtain a divorce.  You can use whichever of the five facts apply to you regardless of the age of any children.  The five facts are:

  1. Adultery;
  2. Unreasonable behaviour;
  3. Two years’ desertion;
  4. Two years’ separation with the consent of the other person; and
  5. Five years’ separation without the consent of the other person.

The existence of children or their age is not relevant to the fact relied upon to obtain the divorce.

 

If I get divorced, will my child’s premium bonds be classed as assets?

It is unlikely that your child’s premium bonds would be classed as assets particularly if they are of insignificant value.  However if they are of significant value and there is little in the way of other assets, then it is possible for either parent to argue that they should be taken into account as part of the marital assets. Much will also depend upon the intention behind taking out the premium bonds in the child’s name.  If it was intended to be a savings mechanism for the benefit of the child then in my view the bonds should not be regarded as matrimonial assets.

Author: Mark Christie

Mark Christie is the head of Stowe Family Law’s dedicated Children’s Department. Mark has specialised in family law for more than 30 years and provides clients with a wealth of practical experience.

Comments(13)

  1. Ken says:

    My ex partner wants to change the terms of our agreement as set out and documented by Family Mediation around 2005. She would like me to see my son less, myself obviously more. She is unwilling to return to mediation. What can I do, if she prevents the current agreement from taking place and what options do I have to get increased access e.g does his baby sister have rights?
    Also we are given limited info as to which times we will see him, she will always hold on to him and we have to take whatever’s left available. Can she dictate like this.
    Any advice greatly appreciated

  2. JamesB says:

    Dear Ken, I advise you not to do so. The advice is to take what’s on offer and support the Mum and work towards getting more on her terms. If you go to court the court will just give you one overnight every other weekend and some school holiday which is the standard everyone gets where parents cant agree. Plus you get bad faith and that is worse. If she is offering that or more than that take it and smile. All the best, good question.

  3. JamesB says:

    Another idea would be to go back to mediation. Pretty much anything is better than going to court (speaking as a father who has gone to a final hearing on contact – twice).

  4. Yvie says:

    I also agree that Court should be avoided if possible. My son has been through the family court system twice. The first time my son was offered reasonable contact by his ex. but not 50% (he was at that time looking after his children for over 50% of the time). When the order was stamped by the Judge, it was a shared residence order. This all came about following a prohibitive steps order when his ex. claimed he was trying to abduct his chidren. Oddly enough she turned up at the hearing on the appointed day and immediately offered contact.

    The second time was because the eldest child, in particular, but also the youngest, asked for extra time with their dad. My son tried to negotiate with his ex, but out of the blue came an ex. parte application by his ex when she attenpted to stop him seeing his children, citing that he was an unfit father. My son’s solicitor was excellent in preventing the ex parte application progressing further. The eventual outcome was the original order remained the same, but with the addition of half the school holidays. This was very costly for my son and he is still paying and will continue to pay for several more years. The solicitor representing his ex. has not been so lucky – she has had to take action in order to recover her fees.

  5. Tulsa Divorce Lawyer Matt Ingham says:

    Of course each jurisdiction treats the issue differently, bur here in Oklahima USA our jueisdiction’s laws dictate rhat rhe presiding judge shall decide each case on a case by case basis in accirdance with what the judge thinks is ‘in the best interest of the children’.

  6. Chavez says:

    Sounds good matt. Here in uk it’s basically a case of trying to find any reason however small to deny dad any contact. Reason being so that he has to pay more support. Never would have thought that a backwater with an awful history could be more progressive than Britain, but there you have it.

  7. Luke says:

    Actually Chavez is right – I was speaking to a female co-worker and she was quite candid about the fact that she didn’t want her ex-husband to get any more contact because she didn’t want to lose any of the child support he was paying. I didn’t say a word.

    This was in my view a nice and reasonable women in every other respect – if she was thinking like that then I can believe that any woman might do so.

  8. Bill says:

    It’s not only that. It’s also the fact that if dad was to share the care, he would immediately clue into all sorts of other sexist inequality in the system, because despite having dependent children that live with him part of the time, he would not be eligible (like moms) for tax credits, child benefit, housing, etc. Hence, the need to keep dads down to alternate weekends or nothing.

  9. Bill says:

    It gets even better than that.

    Because add to all that insult and injury the fact that, even if you do get shared care (because the court cannot find any reason to order less, no matter how hard it tries), you still pay maintenance. And you still pay maintenance despite the fact that you earn less than mom, because you have stopped full-time work so that you can be involved. So your children grow up in a completely unbalanced situation where their dad cannot provide as well, and we know that dads who cannot buy their children the latest i-pod every year are no dads at all.

  10. JamesB says:

    Your last post made me smile, thanks Bill.

  11. Ann says:

    Hi,

    I’m recently separated with one small child and soon headed for divorce. We all live in Scotland and I wish to know how do I check ex husband is being honest about money in savings accounts and ISA’s? Can I run any type of check especially if he empties accounts between seperation and divorce and does this cost a fortune? Who does the maths to check accounts produced? I have no evidence but as the E or E1 form isn’t used in Scotland, how do I know he is being honest? Is appears to be all just based on honesty!
    Also what is the time frame for accounts he has to produce? Is it time during together, from seperation, or around the time of divorce? Many Thanks A

    • Marilyn Stowe says:

      Dear Ann
      Rachael Kelsey is commenting on the blog I suggest you contact her in Edinburgh. Shes very good. I dont practice Scots Law.
      Regards
      Marilyn

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