Advice please

[Moneybags]

Hi all,

New here but have been reading through some of the posts and hoped I could receive some advice.

This is a long post so
TLDR:
Late last year my ex-partner walked out of our jointly-owned home with our kids and has been staying with her mother in overcrowded conditions. she is making subtle threats have been made of 'contacting CSA' etc. if I don't give her money for rent.

Our son, is now 4 and my ex was obsessed with having him diagnosed as autistic. The doctor reviewed him and said she didn't feel he was autistic but simply a little behind but that he would catch up as he starts school.

I made the argument that when he starts school they will report if he is struggling with certain things and that will help prove it but she would not listen to anyone who disagreed with her. I later found out the reason she is desperate for this diagnosis is because she would be entitled to DLA money.

She then left and I thought she'd just taken the kids to the park.

I have spent almost every weekend traveling to seeing my children as well as my step-children, treating them to days out, asking them how they are feeling and showing a united front with their mother. Initially our relationship was very positive and almost as if we were not living apart, but I found this confusing as my ex would tell me she loved me but can't live in our house anymore and after voicing my concerns she turned cold towards me.

It is my intention to obtain custody of my children to spend as much time with their paternal family as possible due to a terminal diagnosis in the family. My ex is wanting me to pay £500 a month but won't sign over the mortgage to me where I live.

I feel like I am being extorted for money despite being able to provide for my children in the house they actually lived in.

Any help please?

 

[Ash]

Hi. Sorry to hear all this. Whatever led up to it all you are technically a separated couple. Whether you were married or not. But as you're not married she can't ask for spousal maintenance at least. She can expect Child Maintenance though. You can use the CMS calculator to see how much you'd have to pay (I'll link it below). What would be better is to make an informal arrangement - this is known as a "family based arrangement" but ideally you need it documented on paper what's agreed (even if it's just a brief text or email). So if CMS calculator says £700 a month and she is asking for £500 plus you paying for various things, I would go with the latter. Ideally a family based arrangement would be written down clearly stating who pays for what and how much you pay moneywise and how much you pay for "in kind" - eg uniform, shoes etc.

I am not sure how hard up your ex is - presumably she now has two Dads paying Child maintenance for both sets of kids? Plus child benefits and tax credits (maybe another £3000 a year). That won't be counted in means testing for benefits. So if she's not working she'd be entitled to housing benefit and universal credit as well. My ex was doing very nicely financially in that situation! Her rent was paid under housing benefit, she had about £3,000 a year child benefits plus money from me every month for child support, and she was allowed to work 16 hours a week as well. The child benefits are higher before they are aged 5.

Regardless of all that the legalities are - if you're now separated then you need to agree Child Arrangements and pay Child Maintenance to her - unless you have agreed the children live with you 50/50 so no CM to pay - which would need to be recorded in writing somehow.

The children are not coming to stay in your home with you at all. Ideally that would be the case. Sounds like you're separated but still kind of behaving like a couple in a way.

Advice on here usually is - sort child arrangements first - it affects the money side and means the kids can't be used to blackmail you (which happens a lot - pay x amount or you won't see the kids - type thing).

Things like the mortgage and finances can be dealt with after Child arrangements are formalised.

So are you accepting you're separated or hoping you might get back together. Do you think she's likely to want to get back together? It sounds like she also doesn't want to live in your new area and has gone back to somewhere familiar.

As both names are on the house, you own it equally so could ask for her share of the equity out of the house. ie you'd have to buy her out and remortgage. She probably won't agree to have her name off the mortgage without having any equity due to her (if there is any, if only recently bought).

Legally you would find it hard to get sole "residency" under current circumstances when the children don't even spend any time overnight with you (except in a hotel). Your argument about overcrowding will only fuel her argument that she needs money to set up a home for the kids.

The best solution would be a 50/50 shared care arrangement (which you're likely to get - it's virtually unheard of for a Dad to get sole residency unless the Mother a) agrees to it b) has serious drink or drug issues or c) is a danger to the kids some other way - real hard core stuff.

With the distance, 50/50 would be hard to achieve as you wouldn't be around for midweek nights during term time - to have them in your home.

So some thinking to do. You say you work from home. Could you sell up and move nearer where the kids are now (even if renting for a while till things settle down)?

Presumably your two aren't yet school age (except maybe the four year old). 50/50 would be two consecutive nights with each parent midweek and every other week-end each.

If you're living at a distance the court would probably order that the kids live with their Mother and spend time with you every other week-end and half the holidays (unless your ex agrees for them to spend more than half the holidays with you and three week-ends out of four, to make it nearer 50/50).

Any chance of a reconciliation? And do you think she would agree to the children coming to your home every other week-end? How old is the youngest?

 

[Ash]

Child Maintenance Calculator

Calculate Child Maintenance

www.dadswithkids.co.uk

 

[Moneybags]

Hi admin

I can't seem to delete my own thread but am speaking with a solicitor so don't want this posted online anymore.

Please can you delete this post?

Thank you

 

[Ash]

Messaged you. No-one can read posts on the forum unless they are a registered user.

 

[Ash]

I've edited your post quite a bit so you could be anyone (and also edited my response to remove certain things that could be less generic).

 

[Ash]

If you can afford a solicitor that's good. I'd suggest you apply for 50/50 shared care "lives with both parents" and nothing less than that. You can always negotiate down but you can't negotiate up after application. You're likely to get that except for the distance. The standard a court will order for a Dad is every other week-end, one midweek overnight and half the school holidays. Which is about 30/70 or 40/60 (depending if the week-end ends Sunday night or Monday morning). But with distance you wouldn't get the midweek night. If agreement is reached by consent there can be variations on that - eg 3 week-ends out of 4 with you and more than half the holidays - to make the 50/50. But it sounds like she's not going to be inclined to agree.

But the first thing to try is mediation. You have to have had a first appointment (MIAM) anyway before you're eligible to apply to court.

As things have been reasonably amicable so far, it might work. So if you google mediators and ring round them and go with the one that you like the sound of and has an early appointment, you can have your MIAM (Mediation, Information Assessment meeting). You go to that one on your own, explain the situation and the mediator then invites your ex to attend the next session. You can probably get one to do it by zoom with you both if there's the distance issue.

If your ex declines to attend mediation then you ask the mediator to sign you off. You need the sign off form before applying to court for a Child Arrangements order.

I've done all my own court applications (I don't trust a solicitor to fill them in in case they put the child lives with the Mother! Which immediately gives the Mother a residence order). Then I use a solicitor. If you can afford a solicitor barrister team, that's good. After my first application I opted to do most of it myself and just use a direct access barrister for hearings. They are very good and the only time you need a solicitor is just before final hearing, to help write your statement, make sure statements are exchanged correctly and sort the final court bundle. Otherwise all they do is send letters back and forth arguing and running up bills IME. None of which is evidence in court.

One thing your ex can't do is have it all her own way. Yes she can choose to separate but she can't just keep the kids and give you unsuitable hand outs. The focus should be on the kids having regular and significant time with both parents in both homes (which is their right by law). But some Mums just assume they are going to be the only main parent and the Dad can have occasional "visits". It depends what you want as well - if you don't want 50/50 shared care and prefer them to live with her most of the time then that's ok too.

Start keeping records from now on because you need to start building up "evidence" - so write a list of all the dates the kids have been with you, where you went, what you did, where you stayed. Then start keeping a diary of the time you spend with them. Eithe just write it on a calendar or send yourself an email "diary note" (which will be date stamped so more authentic). Just something like - Picked up kids from Mum's at 5pm Friday, stayed Holiday Inn for the week-end, dropped off kids at 6pm Sunday. Went to x place on Sunday. Joe telling me about football club. That kind of thing.

What you need is evidence of your relationship with the kids. Keep any emails or texts to and from your ex - don't delete any. Some you may want to print out and keep in a file (especially if she threatens anything).

The money side is separate from the Child Arrangements side. All you're legally obliged to pay is Child Maintenance at the assessed rate. But - if you're applying for 50/50 shared care then maybe get on with that quickly (after mediation). And if your ex wants maintenance she can apply to the CMS (CSA doesn't exist any more - CMS is an improvement - a bit). CMS is Child Maintenance Service.

 

[Ash]

Although court for Child Arrangements doesn't deal with the money side and is not linked, in a way they are linked, because the amount of maitenance is assessed on your income, with deductions for the number of nights the kids spend with you. Which is pretty rubbish as it gives an ex an incentive to reduce the time to get more money! This is partly why I agreed a family based arrangement with my ex so she had no incentive to keep doing that (and yes it's like blackmail). I pay a stable monthly amount that doesn't go up or down with my income - it means she can never ask me for more but knows I can reduce it if she plays up. It's like cat and mouse. And I do have a "lives with both parents order" about 60/40 but because it's not 50/50 CM still has to be paid.

If you do agree to pay her something, make sure the standing order is referenced as "Child Maintenance" because it has been known for an ex to claim you haven't paid anything and you get a backdated bill. And can't prove that what you paid was actually "Child Maintenance". Keep everything recorded and in writing.

Any texts or emails - keep them polite, friendly and civilised - even if hers aren't. Because these can be used as evidence in court to argue one side or the other (they can be used for or against you). So don't get into any arguments in writing. Also one thing that helps a Dad's case at final hearing is if he can show how civilised and reasonable he has been via his correspondence and how he's attempted to try and reach agreeements etc.

 

[Moneybags]

As an update I received legal advice that the ex was not legally allowed to relocate our children without my authorisation so collected them at the weekend and returned them to their home. Now waiting for my solicitor to provide next steps. Offering them FaceTime and mutual location meet ups although the ex is refusing the latter, I can’t risk her locking the children in her flat.

 

[Ash]

That is very good knowledge for others to know, cheers. And sounds like you have a good solicitor. Possession is 9/10ths of the law. Sounds like because your ex moved so far away the relocation aspect was the determining factor. I was wondering if you should try for an urgent ex parte residence order to make sure you can legally keep them there until it goes through court.

 

[Moneybags]

Just as an update, had a police officer arrive this morning to do an unwarranted welfare check, I was happy to show them the house, food, toys, beds etc and the officer had no concerns.
Whilst speaking to the officer my ex and her mother arrived (they had parked around the corner), entered the house unannounced and took the children in front of us, they stated to the officer they were taking them out but they had no shoes, coats, nappies, wipes or anything, she has once again taken them over 100 miles away and the officer was apparently powerless to prevent this.

I feel failed by our justice system.

 

[Ash]

I am sorry to hear this. Those poor kids. Yes the Police have no powers of enforcement. All I can suggest is you apply for an urgent residency order to have them returned. Ask your solicitor. It seems your ex has had legal advice too. She's probably been told to call the Police to do a welfare check and then turned up and taken them while Police were there to avoid aggro and have a witness in case you accused anything.

I think you perhaps could have refused to let your ex in the house but it probably caught you unawares. The Police have virtually no powers in civil matters, as I have found (unless there is a special court order giving them powers to remove the children). In my case it was illegal eviction! I actually had a solicitor's letter on me confirming it would be illegal for my landlord to change the locks (after he'd threatened to while I was still within my notice for the rental) just in case he tried it. Called the Police showed them the letter and they said they still couldn't do anything.

Had the spend the night in a hotel with my partner with our pet locked in the house and the landlord snooping about in there. Next morning I applied for an injunction, called landlord's solicitor and told them and they let us back in sharpish. Difference was - he had actually done something illegal. Your ex hasn't. Contact your solicitor asap and ask about an emergency hearing. I am sure your ex organised it for police to be there when she turned up, so she can get round you saying she abducted them or something.

Sounds like you do need an order now. Whether you'd get an urgent one or not I'm not sure - solicitor will know.