Need some guidance

[Ray_k]

Hi, first time posting here, just looking for some guidance as I feel completely lost.

I first seperated from my wife over 2 years ago having been married for over 10 years. I have a property in my sole name with a sole mortgage which we were both living in, I moved out for 9 months as she didn't want to be with me, in this time I was renting and paying the existing mortgage, bills, and housefly food etc. I have 2 girls aged 10 and 6. After the initial 9 months we decided to give it another go and I moved back in but after a few months she wanted me out again, I couldn't afford to rent again having taken out a loan in the first place to cover the rental payments. I therefore moved from the Midlands to London to stay with my parents, my work is based in the Midlands but as it was Covid I have been able to work from home. Since moving to London over a year ago, I have recently had the divorce go through, in that time I have continued to pay the Mortgage and bills and Maintenance, she has only just taken on the bills now and asked me to increase the Maintenance payments. The issue I have is we have not been able to agree anything in regards to the property and kids, in general I get to see the kids every other week, Sat - Sun, I am not allowed to bring them back to London as she does not want them to stay with my parents, so I therefore have to book a hotel which I have been doing for over a year. now, there have been weekends where plans have changed and I have not been able to see them and have to wait another week, she has stopped any phone contact as she was nooyed I went to her family to sort things out which she did not appreciate. I can see the kids in the holidays for a few days but again I can't keep them any longer due to the cost of booking hotels, eating out, activities etc as I'm not allowed to bring them to my parents. It was my daughters 10th Birthday recently and I wanted to spend a few hours with her on her Birthday but she refused outright, after much persisting she agreed to let me see her for a few hours the day before, and when I called to wish her on her actual Birthday she never answered the phone. She does not want to discuss anything in regards to the property until my eldest daughter finishes primary school next year, she doesn't work so she can't take on the mortgage and won't be able to buy me out. I offered her mediation but she refused, I was going to continue with the solicior who did my divorce but I just wouldn't be able to afford it. I really don't know what to do, on one hand i'm thinking that I'm seeing the kids and that I don't really want to stir the pot anymore and jeopardise the time I do get to spend with them and on the other hand I feel like I'm being taken for a ride, I want more contact withe kids and to also be able to at least bring them to my parents in the holidays but she will just never allow that, also to be able to have some phone contact with them so that I know what they have been upto and getting on with school. I'm paying near enough what I should be paying in Maintenance but the additional cost is the travel and hotels, and now with Covid over I'm going to have to start going back to work on some days and that will be an additional travel cost to the Midlands, I have existing debts to pay which were the result of initially renting, I'm not even contributing at my parents because I just can't afford it with all my expenses. I really don't know if I should just carry on with how things are and see what happens in a few years, I just can't look forward with all this uncertainty and it is causing me so much anxiety, sometimes I feel like just going all out but I just don't want to make things worse and to not see my girls at all, also I wouldn't really be able to pay for a solicitor and be able to go to court anyway. Just feel completely lost at the moment and feel as if I have no way out of this mess.

 

[Ash]

Hi. Sorry to hear about this. Your ex shouldn't be telling you who can see your kids. Your parents are their grandparents. Although the travelling is probably a lot just for a week-end.

So if you've dealt with the divorce, didn't that deal with the house and finances? Unfortunately this happens a lot - the ex wants to keep the house and kids and have you pay for everything.

Your divorce finances should have allowed for you to be able to afford somewhere to live as well. So if you're not going to be working from home much longer, is there any chance you can live nearer the kids and see them more often?

One thing that struck me was "She does not want to discuss anything in regards to the property until my eldest daughter finishes primary school next year."

I am suspicious about that. Due to your daughter's age. And I would suggest you apply to court on a C100 asap for a child arrangements order for regular time with the children. Because once they get to 11 and go to secondary school her argument will be - old enough to decide for herself.

Not only that but you have equal parental responsibility and she shouldn't be making unilateral decisions about which school your child goes to.

I think this is a big turning point. Understand you don't want to rock the boat, but also you don't want to lose your daughters.

Are you actually paying child support? One danger is - paying the mortgage and bills but that isn't actually designated as "child maintenance" so she could still open a case and demand more from you! So anything at all that you pay at the moment needs to be designated with a reference. I'd suggest two separate standing orders - one that has a reference "child maintenance" and the other that has a reference "voluntary contributions".

Have you used the CM calculator to see what you would be paying? You don't want to end up paying twice over.

So if your ex won't attend mediation, have a MIAM, get signed off, and put in a C100 application asking for an order for regular time with the children. Do you want them to live with both parents or are you happy just to spend regular time with them? Most Dads want 50/50 shared care live with both parents - but you can have 60/40 or 70/30. A standard order would be every other week-end, one midweek overnight and half the school holidays. 50/50 would be the same but it would be two consecutive midweek overnights and the every other week end would be 3 nights (Friday night through to Monday morning).

If you're at a distance you can't do midweek nights.

I can see the dilemma - you can't afford to live anywhere because you're giving her all your money and she's being difficult about you seeing the kids.

If the divorce is done then legally all you need to pay is the assessed amount of child maintenance., Your ex can blooming well get a job - the kids are old enough - and if she can't afford to buy you out of the house, then it can be sold.

What kids want is two homes - one with each parent.

 

[Ash]

When did you have mediation? It only lasts three months. You might need to have another MIAM (first mediation appointment). Just google mediations and phone round and see who can fit you in the soonest. Have your first appointment. They will then invite your ex to attend the next appointment - if she declines they sign you off and you're free to apply for a Child Arrangements order - the current situation is unreasonable. Or you can just say to the mediator that you want signing off anyway and your ex doesn't want mediation. They will still try to persuade you to try but you can ask to be signed off.

Ideally what would you want the situation to be? You having your own place nearer the kids and a regular schedule with them? That's what you need to aim for. Your ex is calling all the shots at the moment and they're your children too.

It's hard to imagine but the next stage might be - she meets someone else, who moves into your house and she stops you seeing the children. You need it legalised.

Normally Dads are advised not to move out until they have a child arrangements order.

I would suggest in your application, that you need to be explaining that you have been seeing the children every other week-end by agreement but sometimes this is cancelled and Mrs Ex won't agree for the children to stay with you when at your parents house. That you have been working from home and living with your parents, but will be moving to your own place soon and ask for an order for lives with both parents, 5 nights a fortnight with you and half the school holidays with defined weeks. That would be every other week-end Friday to Monday and one midweek overnight. And would set out which weeks the children live with each of you. Eg one full half term each, a split half term. Easter and Christmas holidays split with Christmas on alternate years, and speific weeks in the summer holidays. With their ages you could just split the summer holidas into 3 weeks each with any extra days shared between you.

You know your ex better than we do - is she the type that's likely to try and turn the children against you? Whether she tries or not, the Childrens act has a presumption that children will spend significant and regular time with both parents, when there are no welfare issues. Which there aren't.

 

[Ray_k]

Thank you so much for taking the time ro respond, really appreciate it.

Yes I tried mediation last year so will need to go through it again. I have always paid maintenance but agreed a slightly lower amount than what I should be paying considering I'm still paying the mortgage. I would like to move closer to the kids but can only do thet if the house was sold which is something she is not willing to do right now. Ideally all I want for now is to be able to see the kids at agreed times i.e every other weekend and split holidays where I should then be able to bring them to stay with me at my parents.

Also some clarity with the property, just need to know what needs to happen with it, I'm willing to carry on paying until my eldest daughter finishes primary school and for it then to be sold and split as long as I have that agreement in place now so that I know in my head what's happening and can plan for the future.

The issue I have currently is that I can't move out as I won't be able to afford a place on top of paying the existing mortgage and maintenance. The reason I stopped once the divorce was done was because of the solicitor costs related to child arrangements and then the financial settlement, could I file for the child arrangements without a solicitor or is it best to get some kind of representation, just worried I won't be able to keep up with these costs as she is not someone who going to back down easily and someone who is impossible to reason with.

I just thought if I give her what she wants at least I'm seeing the kids for now and maybe down the line she might be willing to sort things out but then I think I don't want to carry on not knowing what's going to happen and be dictated by her for the rest of my life, also the worry I have is she might put the kids against me and they might end up not wanting to see me in the end anyway, so confused!

 

[Ash]

but then I think I don't want to carry on not knowing what's going to happen and be dictated by her for the rest of my life

Exactly - and the kids also need to have certainty about when they will be seeing you. No you don't need a solicitor to apply to court for child arrangements. It can be an idea to use a direct access barrister for a hearing, or hire a solicitor as a one off to help put the court bundle together for a final hearing. If it goes to a final hearing. After wasting a lot of money on solicitors first time round, that is what I did afterwards. A direct access barrister is not cheap but it works out cheaper than running up solicitors bills for sending pointless letters and answering phone calls. And a barrister is way better in court than a solicitor, for advocating for you.

So the initial application is quite easy to do yourself - and we can help on here. I've done all my own applications for various hearings and so have others on here. The most important bits are - ticking the right boxes and the wording for your reasons for applying - get that right and you start on the right foot - and being clear what you want the court to order - not vague.

So yes have a MIAM.

If you have it in writing that it's agreed you pay less child support in lieu of paying the mortgage, then you're covered - it will be classed as a "family based arrangement". If it's not in writing (ie confirmed by email or text) then your ex could go to the CMS and ask them to assess you and get more. And they might even backdate it and send you a bill. So you need to be careful there.

I am not an expert on divorce but my understanding was that financials needed sorting before the divorce was finalised. So there is nothing in your divorce that mentions the house, income, pensions or a clean break?

So start with the Child Arrangements order. Get a clear order for the children that your ex has to comply with - then you';re in a stronger position to negotiate over finances - or just put your foot down - you also have a right to have your own home - which will also be a home for your children.

I would let the financial side tick over as now while doing the child arrangements. At some point you could drop her an email confirming what you will pay and for how long.

Your ex has no incentive to get a job or move house if you're paying for everything. And if the court didn't order that she stay in the house till the kids are 18 (as part of the divorce) then there is no commitment to that.

Another thing you could do is remortgage the house to interest only, thus reducing the monthly outgoings so you can perhaps afford to rent somewhere.

But get the child arrangements application in first.

I would suggest you ask for every other week-end and half the school holidays, increasing to every other week-end and a midweek overnight plus half the school holidays, when you have your own place nearer the children (a kind of proposal to the court).

If it's only every other week-end you won't be able to ask for "lives with both parents" though as it's only 2 nights a fortnight during term time. So it will need to be "lives with the Mother" and "spends time with" you. the main difference being that with the latter you need your exes consent to take the children abroad on holiday - whereas with the former either of you can do that without needing the consent of the other. If she refused though, you can make an urgent application and a court would order the holiday.

 

[Ray_k]

Thank you so much, that is really helpful and has made It much clearer. Will start looking into it and will shout out if I need any further assistance which I'm sure I will.

 

[Ash]

In terms of hearings. If both parents can agree at the first hearing, it goes no further. Usually there isn't full agreement (eg half the holidays as she is not agreeing to that now) so then it goes to a final hearing. The law is on your side here. The court gives 50/50 quality time (which is week-ends and holidays). Care time is midweek when they're at school. Hence it can't really be "shared care" if you don't have any midweek time during term time. Not usually anyway. You could ask for Skype calls on a third week-end. How far away are you from your children?

Family court doesn't deal with the finances - only the Child Arrangements.

 

[Roblox]

Sorry to hear this. Please follow Ash's advice. Get the court ordered contact then deal with the divorce.

Good luck!

 

[Roblox]

Sorry you've got the divorce done. The house goes once youngest finishes primary school?

Have you got a clean break in the divorce. If you're paying the mortgage was that agreed in divorce as if she goes via CMS they may not consider the mortgage.

 

[Ray_k]

Nothing was agreed as part of the divorce, I only got the decree absolute so nothing with the property was sorted as she only wants to talk about when the eldest finishes primary school.

Thanks for all the advice, I think i’m going to try and sort the mortgage out to see if I can extend the term and lower the payments whilst borrowing more to clear my debts off, as it’s only in my name along with the deeds i’m hoping that won’t cause any issues, hopefully that will then give me some breathing space and can then get the ball rolling on the child arrangements.

 

[Ray_k]

Hi,

Just an update, I have managed to extend term on mtg but was unable to borrow more to clear my loan, so only saving a bit, better than nothing though, thanks for the suggestion.

I had another run in with the ex, it was the kids parents evening so I had asked her for feedback, she didn’t reply so I said i’ll find out myself from the school next time. She came back at me saying why I was bothered about getting involved now, I told her that I had always been involved and went to all their parents evenings when we were together and that it’s a bit difficult to get involved now that i’m living over a 100 miles away and not allowed to have any contact on the phone in between. She didn’t take kindly to that and said that if I tried to get involved anymore than I already am then she will prove to me by taking some serious action and that I should not contact her again only to arrange when I can see the kids. Not really sure what she meant by that but I am getting pretty sick of her threats now, she previously said that if I ever went to court then she will tell the kids that I am dragging them to court and tell them the truth about why we separated in her view and that they may not want to see me after that.

Anyway, i’m going to get the c100 form completed and get a fast track miam sign off. Just a question for the form, as I am not allowed to bring kids to live with me at my parents, do I need to ask permission for that too? It will only be if I ever wanted to if I had them during holidays, will continue staying in hotels for the alternate weekends until i’m able to get my own place which can only be if she ever gets out.

 

[Ash]

Try and avoid getting into any arguments with her - sounds like she is threatening to take out a non molestation order (which could affect your C100 application so get that in first!). In future maybe you don't need to tell her you will deal with the school directly - just do it - it's part of parental responsibility - not her business. You asked her for updates and she said no so get them directly from the school. There's a letter template for contacting schools in Legal Resources on the top tab of the forum.

Best to only contact her in writing from now on (either text, email, whatsapp etc) and only about arrangements for the children.

When you fill in 5b on the C100 you explain what your plan is for living arrangements etc. But basically as a parent with PR it is up to you who the kids see or stay with when it's on your time. But don't tell her that or she'll create more arguments. The important thing is getting the time designated in an order. Keep things close to your chest from now on and try and undermine any arguments you have before you've put them to the court.

So are you actually living with your parents at the moment then? 100 miles isn't that bad. It's too far for midweek time but no reason you can't have the kids every other week-end and half the school holidays.

 

[Ray_k]

Thanks that makes sense. Yes i’m currently living with parents and if I could get to keep them in holidays then i’d like to bring them here. She won’t allow it though because she has said she doesn’t trust them and that she wants the kids to be close by and safe and that they haven’t been involved or know the kids so why bother now. Thats why I was thinking to mention it on the form but she will object to that, if I don’ mention it and get the court order she still won't allow it but I suppose that would be up to me at that stage.

 

[Ash]

So if you're living with your parents and the children come for holidays, is there a room for them? If any are over age 10 and different sexes they need separate rooms. One thing it would be important to explain in your application would be that you are currently living with your parents where there is also a bedroom for the children but you are in the process of finding a home of your own shortly.

If there isn't a spare bedroom - make one! Eg you sleep in the lounge on a blow up bed or something.

Actually it could work in your favour as there'd be someone else there so if she was making any allegations or wanting supervised time you could say - the childrens grandparents are there as I live with them.

She might have already thought of that hence claiming your parents aren't safe (which is outrageous surely? Assume your parents are fine?!).

The fact that the children don't know them that well (if true) is irrelevant - they are direct family to the children.

 

[Ray_k]

Thanks again, yes there is a single bedroom that I can sleep in and both girls can sleep in the double, my eldest is 10 and the other is 6 so that sounds like it should be ok. Parents are fine it’s just that she never really got on with them and now just wants total control over everything when it comes to the kids, I know that she will go crazy when she finds out i’ve submitted an application to the courts. Just a final question on the c100, ‘ve read the guidance, i’m not looking for 50/50 so am I okay to do the online one, just seems a lot more straightforward, also do I just send the forms to the court only, do they contact the respondent or do they send anything back to me to then send over to her?

 

[Ash]

If they're both girls then fine yes. Just checking in case she tries to get social services to say it's not suitable - but it is - the two girls have their own bedroom. It's not really about whether you're asking for 50/50 but about whether you're asking for "lives with both parents" or "lives with Mother, spends time with Father". Lives with both parents doesn't have to be 50/50. It can be 60/40 or 70/30. They usually expect 4 or 5 nights a fortnight for shared care "lives with both" so it is a long shot you'd get it with it only being two nights a fortnight - it would be a case of asking for every other week-end and additional time in school holidays (ie more than half the school holidays) to make up enough time. But if you're happy having "spends time with" then yes you could use the online form. The main differences are: If children only live with Mother she is then "the parent with care" and some of them do abuse that and pull rank with schools and doctors and tell them not to let you be involved. There are ways round that though if you have a court order. The other difference is you'd need her consent to go on holiday abroad each time. If it's "lives with both" then both of you can take child abroad without needing the consent of the other.

Suggest you run your wording for 5b by someone on here before sending it off - my view is you need to put more than there's space for on the paper form and can attach a separate sheet. Is there an option to expand the box on the online form?

Happy to look over your wording. It's quite important to get it right as what you ask for can't be changed later and the way it's worded can set you off on the right foot or the wrong foot with Cafcass.

 

[Ray_k]

Hi thanks for that, if I get a court order even if not 50/50 can I still be cut off from being involved with school/doctors, also would she also need to get my permission to take them abroad if it’s not 50/50.

I’ve put some wording together for 5b, first draft below, i’m not sure how much space online version has as not got to that stage yet, got my fast track miam this week, if you could take a look at the wording that would be much appreeciated.

My ex and I separated over 2 years ago, since then we have had an informal arrangement in place for when I'm seeing the children, this has usually been every other weekend, however on some occasions this has extended to seeing the children the following week, all contact arrangements are currently on her terms.

I moved in with my parents in November 2020 which is situated over a 100 miles from where my children are, as a condition to being able to see the children I am not authorised to bring them to live with me at my parents, I have been able to arrange ad hoc time to see the children in their holidays but again with the proviso of keeping them in a separate location which has always been in hotels. Initially I also had some phone contact with the children in between my visits, however, this form of contact has completely been withdrawn since October 2021.

I am asking in this application that the children spend with me alternate weekends, 1 week during each 2 weeks' holidays from school (Easter/Christmas) plus 2 weeks during the summer holidays.
Also, to spend some time with them on their Birthdays, religious festivals. Additionally, video contact with the children every midweek. I am asking for there to be no restrictions imposed on where I keep the children which will always be in a safe environment, I would look to keep the children where I am currently living at my parents on some part of the days I have them in their holidays, there is a spare bedroom at my parents for both the children to sleep in.

Once the property that I currently own and where my ex and children are staying is eventually agreed and sold, I plan to
move closer to my children who will then be able to stay with me at the new property.

I feel this proposal will give the children a set routine as part of their upbringing whilst ensuring they get to spend quality time with both parents.

 

[Ash]

Nearly there Just needs tweaking a bit. I'll have a go and send you a draft if you want. I find that over a few days, edit and re-edit until it reads in a way that nothing can be misinterpreted or come across wrong. For example asking for removal of restrictions not to keep children in an unsafe environment sounds like it is an unsafe environment or your ex may have genuine concerns. I personally also never use the term contact as it makes it sound like you are a lesser parent.

 

[Ray_k]

You’re a star, thanks so much and you make a good point, would be extremely grateful if you are able to tweak a bit.

 

[Ash]

I would put it like this - see what you think. You don't have to ask for permission to do anything, you have parental responsibility. One thing 5b asks for (or used to, it's differently worded now) is they like you to say what you think the other parent's point of view is and why you don't agree with it, so I've added that (makes you sound reasonable as well). I've changed it to "half the school holidays". Do you not want more holiday time with them? Is it because of work? There are three full half term weeks, 6 weeks in summer (more like 6 and a half weeks), 18 days over Easter and Christmas (9 each if it includes week-ends). So with what you've asked for, every other week-end would only be during term time and apart from 2 weeks in summer and 1 week at Easter and Christmas you wouldn't see them at all outside of term time. Normally half terms are split - half the week with each parent. So it's like a normal week-end with 2.5 days tacked on the end. It's up to you but I'd ask for half the school holidays with defined weeks. (Defined weeks means it sets out exactly which weeks you have every year. Eg first two weeks of summer holidays and fifth week) Pros and cons to that. With it you can plan ahead knowing when they're coming. On the other hand if you can't get time off for those weeks you're tied to them. But keeping it just "half the holidays" means you and ex have to agree dates all the time and that can be a nightmare. It also means she can chop ad change her mind over dates. Have a think about it.

If you're happy to just have two weeks in summer, that's fine, but I'd ask for half terms as well as Easter and Christmas.

Tweaked version below - see what you think. Names and ages need changing obviously and I'd also add a bit more about your parenting. Like - prior to separation you always took the children swimming on Saturdays or something. Or anything you regularly enjoy with the children since separation. Obviously that's all the usual things but something specific. Like Elizabeth is good at art and you help her with her homework or you and the children always go swimming together when you can. Makes it more personal and gives an example of you actually parenting so gives them a feel for the fact that you're a parent.

My former wife, Jane, and I met in x year and were married in x year. Our children Catherine and Elizabeth were born in x year and x year. And are now ages 10 and 6 respectively.

Jane and I separated over 2 years ago and since then we have had an informal arrangement in place whereby I see the children at least every other weekend, often extending to longer periods after the week-end.

Since November 2020 I have been living with my parents while organising the finances to provide a home of my own for myself and the children. The distance is 100 miles from Jane and the children, and Jane is now imposing conditions that the children cannot stay with me at my parents home (the childrens paternal grandparents). My parents’ home, which is currently my home too, has plenty of space and the children would have their own room and I would also have my own room.

As such I have been having to stay in hotels to have my children with me. In addition, the regular phone calls I had with my children between visits has been completely withdrawn since October 2021.

I am intending to move closer to the children once I am in a position to purchase another property.

I am concerned that the current situation is unstable and uncertain for my children and they are unable to have the relaxed quality time with me that they are used to and cannot speak to me in between visits. In addition, staying in hotels is not a particularly affordable solution long term.

Jane’s view seems to be that she doesn’t believe it is suitable for my children to stay with my parents. I am not in agreement with this and although this is not a permanent home for them it means they also have the benefit of time with their grandparents and a more usual home life environment with me.

I have tried to discuss the matter with Jane and have tried mediation but to no avail.

I feel it is extremely important that the children continue to have ongoing stability, certainty and security with both their parents, and are able to enjoy happy loving relationships with both their parents and extended family members.

I therefore respectfully request the court to make an order as follows:

For the children to spend every other week-end with me and half the school holidays, with defined weeks, plus their birthdays, Christmas and Easter, with each parent on alternate years. Also video calls with the children midweek during term time and a video call with each parent during longer holiday periods away."