Withholding Child

[StressedDad]

Hi Everyone,

You've been a great help - still no update on my previous post about varying the court order in place to get more equal access to my child but it's meant to be up soon so fingers crossed.

My ex is constantly being difficult, she even put in a last minute proposal immediately before the hearing which I haven't yet seen but for the only reason I can think of is to delay a decision being made further - every single time her solicitor sends a proposal it's always less than 24 hours before the hearing is meant to take place, I've told my solicitor I have issues interpreting complex data so this kind of short notice to make a decision doesn't help me - he has said to her solicitor to send things earlier in a polite fashion but is there anything else that can be done? I take it the judge won't really be interested?

Separate to that - I'm still due another week holiday with my child, her mother has had both she's entitled to (and at the time she preferred) but she wont let me take my last week when is best for me in getting time off work etc and now there are only 2 months left of the year and she/her solicitor havent acknowledged my request to take the extra week during the festive period (but I suspect she'll say no).

What are the implications if I get my child for normal contact but keep her for the full week, I will let my ex know once handover has taken place that i'm taking the holiday I'm entitled to - I have a court order in place stating I get 2 weeks holiday and it doesnt stipulate when (although she is trying to dictate when and said earlier this year was when I could have her but that's now passed). She's also refused every possible alternative to resolve the situation put across by my solicitor so it's not a case of me just deciding to do this - I've tried everything I can think and I'm concerned there are only a couple of months of the year left and it's still not sorted.

Can the police take my child out of my custody if I were to do this or must my ex raise an emergency court order? And if she did what's the likely outcome? I am on the birth certificate etc.

Please help

 

[Kyle]

The Police are unlikely to act as this is a civil matter.

If both parents have parental responsibility then the Police have no powers to remove the child, unless there is a concern for the child's safety.
They may attempt to attend your property just to check your daughter is safe but little else.

That said, you would undoubtedly be doing enormous harm to your position in the eyes of the family court if you decided to do this. And when you return her after your week's holiday what do you think the reaction and subsequent relationship with the mother will be like (if she doesn't or can't submit an Emergency Order)?

Frustration, hurt, anger and the love we have for our children has the potential to make us do things we will later live to regret. There's a famous saying; 'never make an important life decision when your're emotional.' Karma is very real. Everything we do in life has consequences.

Did you get your solicitor to pitch the holiday request on your behalf or was it you yourself that made the request? Have you spoken to your solicitor about what actions to take if knocking on that proverbial door doesn't get you the answer you seek? In other words, asking the court to intervene.

Sending documents to court last minute so the other party doesn't have time to act is probably dirty trick number one. It should be no less than 48 hours. Is there anyone you know who could help you go though the proposals?

 

[mva]

Your ex will react and stop all contact going forward , you will also receive a flurry of legal correspondence whilst on your holiday which will destroy your head space and time with your kid. I speak from experience as frustrating as it is it will back fire. My Advice is don’t do it .

 

[Ash]

If you have a holiday booked and she won't agree that dates you need to put in an urgent specific issues application. No you can't keep your child that week without the Mother's agreement, even though the court order says two weeks holiday a year. Because those two weeks aren't specified/defined. You would be in breach and yes it would harm your case.

If she won't agree you put in an application for an urgent specific issues order for a booked holiday - and they might define the dates annually at the same time. Unless you have a hearing coming up before the holiday.

I can't remember though - are you in Scotland? Might be slightly different there.

If you have difficulty processing information then presumably that's a disability. If you have a registered disability the court have to make allowances for things like that. I can't remember how that procedure works - will try and find out (again if you're in Scotland it might be different).

Having said that the other side can send things to the court just before a hearing. Both sides can. In fact before Covid it would often be on the morning of the hearing and you just get handed something on the day. Either side can submit a position statement before each hearing. Rather than worrying about what she has submitted, then maybe focus on putting your own position statement in just before the hearing (and you need to send the other side a copy as well before the hearing - but the only requirement is to send them a copy - you can leave it till 2 hours before the hearing). It can update the position from your side (one thing in it could be that holidays need to be defined as your ex won't agree dates) and it can also pre-empt anything you think they may be trying and give reasons for the opposite (if that makes sense).

Do you actually have a holiday booked? Tickets for travel eg? If so you should be able to do the specific issues application. But you need proof of booking.

 

[StressedDad]

Thanks for the replies.

Ash: No holiday booked, just concerned there are 2 months left to the end of the year and she's refused every proposal.

Yes in scotland so a bit different but get the sentiments you mention that it wouldnt look good - just very stressful and upsetting as she's getting to dictate almost all the time.

It's difficult because me putting things in last minute doesn't really help the situation in general as she has all the power at the moment with having residency so I'm almost at her beck and call.

A position statement isn't the proposed variations to the existing court order is it? Is it more a statement as to why I'd like the changes made etc such as equal contact, ex wont agree holiday dates and has rejected 7 proposals so far forcing things to court?

 

[Ash]

A position statement is not like a full statement - it's more of a "note" to the Judge. Some barristers actually head theirs "note" rather than Position Statement. For a Litigant in Person it's better to call it "position statement". It literally is just an "update" on the current position, anything that has happened since the last hearing, and anything else you wish the court to know for that particular hearing - and you can ask for various things in it as well. The fact the Mother has residency doesn't have a bearing on your side of the court case.

When is the next hearing?

 

[Resolute]

Thanks for the replies.

Ash: No holiday booked, just concerned there are 2 months left to the end of the year and she's refused every proposal.

Yes in scotland so a bit different but get the sentiments you mention that it wouldnt look good - just very stressful and upsetting as she's getting to dictate almost all the time.

It's difficult because me putting things in last minute doesn't really help the situation in general as she has all the power at the moment with having residency so I'm almost at her beck and call.

A position statement isn't the proposed variations to the existing court order is it? Is it more a statement as to why I'd like the changes made etc such as equal contact, ex wont agree holiday dates and has rejected 7 proposals so far forcing things to court?

I can feel your pain, it is a horrible situation.

You are at her beck and call most of the time, but you do not have to be put off track by what she and her solicitors throw at you. They put so much nonsense in front of us it becomes almost impossible to wind things back to the simple point we have in our favour.

How about writing to her reminding that there is a further week that needs to be scheduled with you before the end of this year quoting the relevant part of your order. Mention the proposals you have made already and list every week you could make work. Ask her for a response within 7 days confirming the week she agrees so you can make necessary arrangements.

If you do not do something like this they will happily claim that you were not interested in the additional week and did not make arrangements for it to go ahead. It is hard, but I find it really useful to keep reminding myself that there is no honour, good faith, or consistency on the other side. This helps me to focus on what needs to be in place to limit all conceivable claims they might make. It takes a peculiar turn of mind to handle people who will happily lie through their teeth.

I fear an awful lot of victories are had by making a loving parent believe it is impossible and give up as a result.

 

[StressedDad]

Thanks Ash & Resolute,

It is just so hard - the next (and hopefully final hearing) is this week. I've put my final position across and its pretty much 50/50 holidays, no change to current festive period arrangements plus over 20 additional 'leisure' days (as she says she has no leisure time with child, absolute nonsense but nevermind)

I'd even offered to forego the last week of holiday to get agreement because my daughter's long term welfare is what's important to me but all rejected.

She made a counter proposal that reduced my weekend contact to just a sat/sun (so seems tactical to make me have no reason to be at my child's school for any reason such as pick up/drop off), also completely changed festive contact, made to look 50/50 but really it's a reduction and upheaval on christmas day; asked for additional weekend contact (totals about 8 days in the year, I currently get all weekends but have offered one a month) .

So she wanted all that, agreed to nothing I suggested other than my weeks holiday to be taken in December on the 'condition' i agreed (it's not a condition because it's in the existing order I get two weeks which I've not fully had).

I feel it would be a real terms reduction to my contact just because I essentially asked for school holidays to be as close to 50/50 as possible (roughly an increase of 14 days... I'm offering her over 20 in return with the weekends).

It just feels she's so vindictive and only thinking of what fits for her and her new partner where I'm trying to be fair and think of what's best for my child.

I'm now terrified the judge goes with her and basically I've lost so much as I'll then have reduced contact, been eliminated from being involved in school by default and my ex will have successfully worn me down

 

[Ash]

This is all fairly standard when trying to reach agreements - it just doesn't happen - what she wants and what you want are completely different. Which is why in the end it needs a court order to decide the matter - which is why you need a really good statement and argument for a final hearing to win over what you want and if what you ask for is reasonable then you would probably get it. In England the "standard" is every other week-end and a midweek overnight plus half the school holidays (and yes it's best to define weeks and Christmas etc or she doesn't have to follow it! Then you'd be back to court again to get the weeks defined.

So what's wrong with that Mrs Ex StressedDad? Absolutely nothing! She is complaining about not getting quality time at week-ends simply because she refuses to let you have midweeks. Now she wants it both ways - reduce your week-ends and still no midweeks. That isn't child focused - that's about her needs and wants. And that is a big argument - always stick to - this is in the best interests of the child for stability and certainty with both parents. Because that's what it should be. Not what your ex wants.

If there's a chance this next hearing is your final hearing then you really need to be on the ball. Have you had to exchange final statements or submit any evidence? I know it's different in Scotland. Or are they still wanting parents to submit proposals to try and agree. If that is the case then you really don't want to be giving way on any of your time at all. Fine you can show you've tried to negotiate but you need to stick to your guns on what you feel is best for your daughter with both parents. And frankly two weeks holiday a year isn't enough - unless you're happy with that.

Yes week-ends are "quality time" as are holidays - and midweek term time is "care time". So she is setting herself up as the main (and only) carer by not allowing midweek time. And instead giving you all the week-ends. Which is fine if you're happy with all the week-ends and it's from school on Friday and back to school on Monday. But it's not really best for the child because they need quality time and care time with both parents, to have normal relationships and a range of their day to day life shared with both parents.

So I think you have a good case to argue that it's better for the child to have every other week-end from school on Friday to drop off at school on Monday morning, plus one midweek overnight with you each week. And don't settle for two weeks holidays if she won't even keep to that - ask for half the school holidays. Always ask for MORE than you want so you have room to negotiate down.,

So for example if the court sees her proposals (reducing your time) and your proposals (increasing your time to much more than before) they will probably order something in the middle - which would be the standard EOW and 1mw night. Holidays = you could negotiate down from half the holidays to - two full half terms, two weeks in summer and the Christmas arrangements.

Yes any proposal an ex and her solicitor makes will be full of loopholes and vague wording so it's not worth the paper it's written on.

But you need to be really on the ball and prepared for this next hearing - don't ask, don't get.

When is the hearing? And what have you been asked to submit to the court?

 

[StressedDad]

So in Scotland it's pretty much the solicitor puts in your position along with the variation - I asked about doing my own 'statement' as such but that isn't the norm apparently. Sometimes the judge doesnt actually want to hear from the parents and only solicitors so can be more frustrating as I'm relying on my solicitor covering A LOT of detail on how I'm feeling and how the process has went and trying to bat out the lies from her side etc.

I'm happy with what I've asked for as I feel it's as close to 50% school holidays, 3 out of 4 weekends and keeping the festive period turn about; it means my daughter has more equal contact with both parents.

I started negotiation asking for a full 50% of holidays which was around 5 weeks in total so I've worked down to an area I'm comfortable with that covers the above ensuring we both as parents get quality child centred time.

I do feel my ex is getting away with awful behaviour, last minute changes and making false accusations and I've told my solicitor this, but whenever they go to the other side it's not mentioned or is 'lightly' touched on when I feel she should be reminded that I'm entitled to the outstanding holiday time and that sending proposals last minute doesnt give much time to consider things and I feel the judge should be aware but also I think the judge isnt interested in that and only what is best for the child, but if they could just see what her game is it would make things much easier in my view.

If they go with her options and reduce my contact I will honestly be at my wits end because it then appears its not what is best for the child but rather what the mother wants in my opinion as I've literally done nothing to warrant an actual reduction in the time i get to spend with my child.

Should I prepare myself for that being a real option, even though I've tried to negotiate, reduced what I've asked for and even offered her more leisure time? (and can I just say that I don't get the time in the mornings or immediately after nursery with my child, they do and it includes leisure time unlike what she is claiming, what are they doing from 4pm - 8pm every evening during the week for example?)

 

[Ash]

If you only have your daughter 3 week-ends in four that is a very long gap without seeing her at all. For three weeks you see her every week-end - then you go a full two weeks before you see her again. That's not child focused - it needs to be regular time to keep a stable schedule for the child. Which is why the usual is every other week-end plus a midweek night.

Eg

Week 1 Wednesday from Nursery until Thursday morning then Friday from nursery until 6pm Sunday (or 9am Monday ideally)
Week 2 Thursday from Nursery until Friday morning.

Repeat fortnightly.

What that means is you see your daughter wednesday night one week and thursday night the following week, with every other week-end in between. If it's just every wednesday then one week you go 6 nights without seeing her. If it's alternate wednesday and thursday you only go 5 nights without seeing her.

How old is she if she's in nursery? Because actually the best kind of schedule for a very young child is more regularly - like every 3 to 4 nights so they keep up the bond with both parents.

 

[StressedDad]

Yeah my ex just won't go for that (I know it's not about her), I'm more than happy to go every other weekend and even do some midweek contact and I've asked my solicitor to keep that up his sleeve per say.

Sorry Ash, just so it's clear when you say repeat fortnightly, can you map that suggestion as 4 weeks? showing what contact I'd have for that full month?

The mid week may be slightly difficult but I would make it work for my child; but I felt what I've proposed is reasonable towards both myself and my ex and means we get as close to equal contact as feasibly possible given circumstances to continue to build a rewarding relationship with our child.

She'll start school next year but I've been deliberately kept out of nursery which I'm trying to avoid happening at school - it's so bad that the nursery have been awful to me and said they can only deal with 'Mum' even though I'm on the birth certificate etc and I'm not sure how to combat that as surely it's not right?

 

[Ash]

The nursery are doing that because Mum will have instructed them. Yes you have equal PR but she is the "parent with care" because she has most of the care time days - and some Mums really misuse that "parent with care" card. It's a good reason to take it away from them if she's preventing you being involved in educational area (to take it away would mean an order that says child lives with both parents - as opposed to lives with Mum, spends time with Dad).

That fortnightly pattern just repeats fortnightly so four weeks would just be those two weeks repeated. Best to do it in fortnightly view as monthly views can be complicated as months are not all the same length.

So do you not really want midweek overnights then? Would you prefer just all the week-ends? To be honest the current arrangement isn't fair on either of you and not best for the child either - they do need good week-end down time with both parents, and they need normal day to day life time with both parents (eg nursery days or school days) - otherwise one seems like a holiday parent and the other seems like a care parent.

Whether she agrees or not, the court might approve of the EWO and 1 mw night suggestion from you and you can argue it gives your daughter regular and significant time with you but also gives quality time at week-ends with both parents. At the same time you can ask for a clause that says both parents are to be provided with updates and information from nursery, and later school.

 

[StressedDad]

Well she's definitely misusing the 'parent with care' card, all I'd like is to be able to attend school events/sports days, attend parent's evenings if I chose to and ask questions about her learning and how she's getting on if it were ever needed as I just won't/don't get that from my ex so surely providing the documentation I have would enable this and they can't point blank refuse?

Midweek isn't ideal but I'm prepared to do that if necessary, I'm a parent and many others have to do it so if that's the only option I'd take it, the thing is is my ex just point blank refuses anything if it doesn't suit 'her' - I just don't think the judge will 'maintain' the current every weekend contact based on my ex misrepresenting that she gets no leisure time so I was offering more in return for getting a couple of extra holiday weeks; but I don't want to end up with less contact than I do now if they go with her proposal as how can a judge really think that would be in the best interest of the child?

 

[Ash]

You don't have to ask to do these things or get permission. You're entitled. All you need is a good court order that stops your ex dictating things. When your child is in your care it's up to you what you do and where you go. You can deal directly with schools yourself and if they say they won't you send them a formal letter of introduction (good idea anyway) with proof of PR and a copy of any court order and they have to deal with you. If they still won't you go over their heads to the Local Authority who will come down on them like a ton of bricks because they are obliged to deal with you legally. Sometimes schools are in a difficult position if the parent with care says "Dad is not allowed to come to school or collect from school or see daughter in school" - because they don't want to get caught in the middle. That's where the local authority/education board comes in. That then gives the school an excuse to say to the Mother "out of our hands".

So you just need a good court order. She won't give you any info at all about medical stuff and schools - so you just get registered yourself and get it directly. By sending them your court order and a formal letter. Don't expect to co parent with her over stuff like that. If she's difficult then it's a case of separately dealing with schools and GP's etc. Most schools will deal with parents separately and send you your copies of stuff separately and even arrange separate parent evening appointments.

Go for the best possible order you can - it's really important before your child starts school. If your solicitor is being a bit woolly and biased towards the Mother with these "proposals" - could you change solicitors?

 

[StressedDad]

Thanks Ash - I'll be using that guidance for school etc as I just know she's going to do all she can to 'remain in control'; it's sad really as she has a new partner and I have no issues with him being in my childs life, in fact I'm quite happy for them to play happy families etc as all I'm concerned is seeing my child equally and not interested in drama - if she was just reasonable there literally wouldnt be a problem.

As an update for others reading this post - I had my hearing and it was very positive, the judge even went as far as saying it's ridiculous he is even having to vary the original order to enable me more access because as responsible parents we should be able to come to an agreement together in the interest of our child, he said he has to deal with cases where he has to make the difficult decision on whether someone should actually get to see their child at all and this is a trivial issue that should have been resolved without court.

I'm hoping she gets that bloody message as she pushed it and thought she could reduce my contact and enact her plan to slowly remove me from my kids life and actually the judge ruled in my favour for about 90% of what I asked for so I got the equal school holidays, didnt lose my weekends at all even though I offered some of that up (I did concede to drop off on a saturday morning instead of friday night which is fine and the festive holidays are a bit more equal as well.

It's just so nervewracking as you just dont know what a judge is going to say but I'm glad the one I had was reasonable, that was the term he continually used when referring to my requests!

The next step is to stop her dictating how handover works as right now she says I'm not allowed to pick up from her house and she is refusing to drop off at mine (I don't drive, not their problem I know though) so we're having to use a local area in the city centre which is quite a bit from my house and I'm concerned going into the colder months; appreciate I could arrange a taxi but given the current cost of living issue that's not really a long term solution, I also can't rely on family for a lift.

The judge wasnt keen on stipulating where handover took place which i understand as he said again thats something responsible adults need to agree on so I've sent a polite message explaining it would probably be more convenient for everyone to have handover at mine as her new partner would be going to work straight after anyway and I'm thinking of what would be best for our child.

I'm expecting a no yet again.... so what's the best course of action after that, I really don't want to have to go to court yet again for something like that as can only imagine what the judge will say plus what a waste of money that could otherwise go towards our child!!

The pick up part happens at my parents so someone has to come down to mine to then take my daughter up to theirs which i feel is a bit convoluted for the long term, could I try her approach and 'dictate' that's no longer suitable and has to happen at mine as I guess I'm a little more in control (hate using that term) as they have to come and pick her up?

 

[Ash]

That is brilliant news and I am very pleased for you! I know you've been really worried about the whole court thing and the system in Scotland being different (so we couldn't help as much). There are good Judges out there and you had a child focused argument.

I have to say I think it's disappointing though that the handover thing wasn't specified more clearly in an order because surely he must realise that it needs an order because it was difficult making these arrangements! So your Judge lost a brownie point there in my book!

Having said that it can really help if you submit a draft order on the day with things like that specified so the Judge just sees its a sensible proposal and approval.

Eg With father from school on Wednesday until school drop off Thursday morning.

Or - with Father from school on Friday until 6pm Sunday, drop off at Mother's home.

Or - Parents will share collections and drop offs equally

Or - Father will facilitate collections and drop offs to and from Mother's home and to and from school on his care days.

That kind of thing. Sometimes if you don't spell it out and have specific draft order wording, things get left off.

I am not entirely sure about the Scottish system but under English court orders, if the child lives with the Mother, the onus on the Father is to do the collections and drop offs - unless they agree something else between them. And that is expected to be to and from the Mother's home unless it specifies from school.

The important thing though is the order states the dates and times, so whatever changeover agreements you manage to make - it happens.

If she refuses to drop off at your home then a midway collection might be better than you going to hers.

But - technically - if the child lives with her, and you are doing collections and drop offs, she would be expected to make the child available for collection at the correct time, from her home, unless something is agreed otherwise. If they won't agree to share things like that (eg dropping off at your home) then all you need is a commitment to make the child available.

I would have wanted an order to specify to and from school directly, but maybe that's not convenient for you.

if she was just reasonable there literally wouldnt be a problem.

Absolutely!

 

[Ash]

Yes you could be a little more assertive perhaps now if the order is clear that the child is in YOUR care at certain times (not your parents care) if you do it courteously and politely (then it's not dictating). then if you do have ongoing problems and do have to return to court at some point - you have plenty of evidence to show you have courteously attempted to resolve things for some time in the child's best interests.

So if the order says "with Father from 4pm Friday - and they decide to drop off at your parents at 4pm, without your agreement to that, then they are breaching the order because the child was not with you at 4pm.

Having said that, you can't win them all! If they dropped child off at your parents at 3pm then child is available for you to collect at 4pm! But really it's your life and your parents and the child isn't a parcel!

I don't quite understand all the pick up and drop off issues - you did explain before. Can you outline what the issue is? I think you were needing to use public transport weren't you?

Although it wouldn't be great to have to go back to court again, you might have to at some point - this happens quite a bit - just to specify something like "to and from school for seamless transitions for child".

For some reason there is often a huge tug of war over school pick ups - Dads and kids prefer them, Mums seem to hate them and want to be in control of picking the child up first. But the best thing for the child is to go home from school with the parent they are spending the night with and not see both parents in the same day after school - too much adjustment.

 

[StressedDad]

Thanks Ash,

Yeah so the pickup/drop off is an issue as she apparently doesn't want to be anywhere near me (yet will stalk me and pass my house or even follow a family member to their house in a totally different town!! Circumstantial and I can't prove it but gives you some insight.

When we were together there was an altercation and she has accused me of abuse; she mentally tortured me and has been mentally abusive for a long time but I make no excuse for pushing her, it was thrown out of court and there is no restraining order against me, it's just she doesnt want to be near me and I'm fine with that so long as it doesnt cause problems. A while back my solicitor had to tell her it's not my problem and she needs to make arrangements to facilitate the handover which is now she stays in the car and her new partner hands over.

But.. a few months ago they said me going close to theirs for the previously agreed pick up was not convenient and it had to change to either the city centre location or my parents - stupidly I agreed to the city centre one but was more out of principle rather than thinking it through because at the time it felt like she was just getting away with everything and I couldnt do anything to push back.

It's now not convenient, especially due to winter coming in as like I say I don't drive and paying out for taxis is expensive and I'm concerned she gets cold etc; plus I'd rather spend that money on my child - surely it's not unreasonable to ask that the handover point is my own home?

I'm just not sure how to go about getting it in place, I've sent a polite message explaining the situation, no reply yet but suspect it'll be a no and then I'm at a dead end.... again!!

At that point do I remind them of what the judge said about coming to an agreement for what's best for the child, ask for their alternative suggestions or just say the handover back on the Monday has to happen at my house and I won't be able to collect my child from the previously agreed location on the Saturday morning kind of forcing the situation and also reminding them that based on the court order they are to make my child available at the times stated and just saying no to a change means they would be in breach of the order as I've expressed its not convenient and not in the best interests of the child due to weather etc etc?

 

[Ash]

I take it she's not at school?