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Can a carefully worded spend times with order break CMS payments?

I do not think so. Often it will depend on who gets child benefit. Otherwise, it will be determined by # of nights
 
It's based on how many nights your child stays over. That's all that matters. The more nights you have the less you pay. If you have equal nights as in equal shared care then you don't pay anything.
 
I think if the order says the child lives with the Mother and spends time with you, you'd still have to pay CMS - but it's an interesting one because they take the percentage of your income and deduct x amount depending on the number of nights. But I don't think it would be the same as an order saying child lives with both parents equally. It's the "non resident" parent who pays the "resident parent".

Tbh I can't see a court making an order for "spends time with" if it's more than half the time anyway. Do you have an order at the moment?
 
Ash said:
I think if the order says the child lives with the Mother and spends time with you, you'd still have to pay CMS - but it's an interesting one because they take the percentage of your income and deduct x amount depending on the number of nights. But I don't think it would be the same as an order saying child lives with both parents equally. It's the "non resident" parent who pays the "resident parent".

Tbh I can't see a court making an order for "spends time with" if it's more than half the time anyway. Do you have an order at the moment?
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I have a final hearing coming up. RP wants to have lives with her only and she only has our child 3 nights a week, her parents twice a week and me twice a week. Cafcass will not allow 50/50 because 'hostile between sides' even though I'm not hostile at all. I have a barrister and I feel I could get good time each week but the spends with title for no fault of my own is disabling. Is there anyway around it? Feels like I'll be back in court again in 12 months to beg for 1 night each year until it's a lives with both. Child wants to live with me but too young for fie s to be counted. Cafcass really do screw over kids over with lack of training/common sense
 
Cafcass don't make the final decision - they just make recommendations. And although a Judge will often follow those recommendations, there is a chance at a final hearing, to cross examine the Cafcass officer and find fault with their recommendations. Which will be part of your Barrister's job.

Although your child only spends 3 nights a week with your ex, it will be counted as 5 even though she's delegating two of those nights to her parents. But your Barrister could argue that it should be equal nights over a fortnightly period as you can care your child. So in week 1 it could be 4 nights with ex (1 of those with her parents if she wishes), and 3 nights with you. Week 2 it could be 4 nights with you and 3 with ex.

The way 50/50 usually works though is 2-2-5-5. So that would be equal midweek nights - eg Mon Tues with you, Wed Thurs with ex. Then every other week-end with each parent from Friday through to Monday morning (3 nights). So added onto the two midweek nights fortnightly, it makes 5 nights.

Which 2 nights do you get weekly at the moment, which two nights with grandparents and which 3 nights with your ex?

Because however it works out, the court will always do every other week-end with each parent.

I think there's a strong argument that two regular nights a week away from a parent is too much when she has two parents.
 
Ash said:
Cafcass don't make the final decision - they just make recommendations. And although a Judge will often follow those recommendations, there is a chance at a final hearing, to cross examine the Cafcass officer and find fault with their recommendations. Which will be part of your Barrister's job.

Although your child only spends 3 nights a week with your ex, it will be counted as 5 even though she's delegating two of those nights to her parents. But your Barrister could argue that it should be equal nights over a fortnightly period as you can care your child. So in week 1 it could be 4 nights with ex (1 of those with her parents if she wishes), and 3 nights with you. Week 2 it could be 4 nights with you and 3 with ex.

The way 50/50 usually works though is 2-2-5-5. So that would be equal midweek nights - eg Mon Tues with you, Wed Thurs with ex. Then every other week-end with each parent from Friday through to Monday morning (3 nights). So added onto the two midweek nights fortnightly, it makes 5 nights.

Which 2 nights do you get weekly at the moment, which two nights with grandparents and which 3 nights with your ex?

Because however it works out, the court will always do every other week-end with each parent.

I think there's a strong argument that two regular nights a week away from a parent is too much when she has two parents.
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At the moment I get Fri- Sunday or Sat morning til Sunday evening. Mostly Fri - Sunday. RP honestly doesn't want to parent but it's the CMS payment that she wants. She nearly accepted shared care if i tripled my CMS payments in a private agreement but she did not cancel CMS agreement and then she went angry again and made more false allegations. Issue is I have magistrates instead of a judge. Is it common for magistrates to use their initiative and see through it all or are they more likely to follow an algorithm i.e. cafcass recommendation of only 1-2 nights per week. I spoke to a few barristers and all said they rarely knew any cases that deviated away from cafcass recommendation. RP has cafcass in her back pocket at the moment.
 
You need a good barrister. That sounds a bit iffy to me. On the other hand if the outcome from a final hearing with magistrates isn't good, then you can appeal within 21 days and get an appeal hearing with a more senior Judge.

So you have the kids every week-end? And she has them three nights in the week and the other two nights they go to her parents? Actually that's not a bad arrangement if you have them every week-end - if it's from school on the Friday until Monday morning, because on the Friday you'd at least have some involvement with school.

The court wouldn't order every Friday to Sunday - they would probably do more like every other week-end a midweek overnight. But if you want to keep every week-end then that can be agreed as a consent order at court. If both parties agree the court will order it.

It sounds like you're not likely to get 50/50 but it's still worth asking and setting out a reasonable proposal. How old is your child/children? If they're over age 7 you could ask for week on week off. With changeover on a Friday after school. So each parent gets a full week-end and a full week of midweek nights. Then it's up to your ex if she decides to leave them somewhere else during her week.
 
Which basis could I appeal to go to a senior judge? Will it be major errors in the case? Problem I have is I can't work properly because ex wants high CMS to fund her lifestyle. I was abused for years emotionally and financially. I refuse to do it. Is there a good chance to move from EOW father to shared care in a year? I think I could get 2 nights every week before the hearing. It just doesn't make sense that no safeguarding, less than 30 mins away from each other, I have a good job and respected job looking after children and cafcass recommendation blows it all out of the water.

If ex continues to be hostile then that means I can never get a recommendation of shared care due to their algorithm. I feel like the only way to be involved at least half the week is to cut contact on allegations and start a new status quo and even though there's plenty of allegations that could stop the contact I can't do it ethically and see my child hurt. The system seems to reward the abuser that falsely stops contact.

Your advice is really good and realistic. Looks like I have to try my best with the advice and then keep applying every year until child is old enough to decide/risk alienation (there are some alienating behaviours already documented but cafcass do nothing about it)
 
You haven't had the final hearing yet :) There's still a chance of lives with both parents - that's why you submit statements with evidence for a final hearing and have the barrister cross examine Cafcass and the ex. It sounds like you need the right person though.
 
Ash said:
You haven't had the final hearing yet :) There's still a chance of lives with both parents - that's why you submit statements with evidence for a final hearing and have the barrister cross examine Cafcass and the ex. It sounds like you need the right person though.
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What type of evidence should I file. I feel anything to show how incapable RP is will cause me to look hostile although true. Is the evidence to show no hostility, living close, can coparent etc? Do I submit a c2 form or email court to request to submit evidence? Thanks ash
 
If you've got a final hearing coming up, have you had an order to submit witness statements by a certain date for this hearing? That is when you attach evidence - to your witness statement (AKA final statement).
 
Ash said:
If you've got a final hearing coming up, have you had an order to submit witness statements by a certain date for this hearing? That is when you attach evidence - to your witness statement (AKA final statement).
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Thanks Ash. Do I need to seek permission for any evidence like nursery reports or text messages?
 
If you've been asked to produce a Witness Statement for a Final Hearing or otherwise then yes, this is the point at which you include all the evidence you believe is helpful.

Usually it's referenced in the WS eg. Refer to Light.Photo.001 or Text.001 etc You then include that evidence in an Appendix at the end of the WS.

You do not require permission to do this for your own WS
 
Ash said:
Not sure what you mean. Permission from whom?
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Permission from the court. RP has filled a C2 form to ask for permission for a witness statement from someone else. I wasn't sure if I was allowed to add evidence in besides a written
MagicJ said:
If you've been asked to produce a Witness Statement for a Final Hearing or otherwise then yes, this is the point at which you include all the evidence you believe is helpful.

Usually it's referenced in the WS eg. Refer to Light.Photo.001 or Text.001 etc You then include that evidence in an Appendix at the end of the WS.

You do not require permission to do this for your own WS
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Thank you. Is it worth doing after no safeguarding issues identified and cafcass feel there is 'hostility' between sides. Could I include a witness statement from nursery?
 
You can include letters from professionals as evidence in your Witness Statement, for example to stage that you are fully involved with your child etc. which works really well.

Or are you looking for them to corroborate specific events that have occurred as evidence of the EX behaviour?
 
Have you actually submitted a witness statement and evidence already? If not then just attach any evidence you have to your witness statement for the final hearing. If statements and evidence have already been submitted, and your ex wants to add something else, they are supposed to seek your agreement to it first, and if that is declined, then they ask the court for permission to submit additional evidence. I wouldn't worry too much as if her "witness" is a friend or relative, the court will know they are biased towards her. There is better evidence than that.
 
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