Wondering about my 50/50 chances

[Ash]

I can see what you're doing there. Saying to her look I don't want to just pay CM to you, because I'd like to see the kids half the time and share the cost of everything. However - the CMS payments are a legal obligation until the CMS decide otherwise. It's tricky if you're also still paying all the mortgage and bills. What's right and fair isn't always the way the CMS view things though. Have you spoken to the CMS? I find they can be quite helpful if you talk to them and explain the situation - and be very nice and polite to them. But if you don't - and they only hear from the ex - they can get heavy and treat you as a defaulter. Mortgage payments don't come into the CMS calculation (which they should). I would tell them that you're in the family home, providing for and paying for a home for the kids and are in the process of getting a court order for shared care - and you cannot afford to both provide a home for the kids and pay the full CM. And see what they say. They will probably just stick to the rules and say - unless there is a court order saying the kids live with you, or live with both parents equally, it's purely assessed on your gross income and legally has to be paid. Unless you can agree a family based arrangement with your ex. CMS will accept a family based arrangement. That is where you agree with your ex, for example that you pay x amount of CM (less) but also pay for various other things instead.

Yes "lives with" means the child lives with someone and they are the "resident" parent - even if they don't live in the former family home. But if there are no court orders in place there is no order to say who the children live with. If it says "lives with both parents" then it's shared care. However, you can have "lives with both parents" without it being equal time or 50/50. So the way CMS look at it is - who is the "parent with care". The parent with care is the one with the lives with order. If it's lives with both parents, you are both the parent with care - but CMS is still payable to the parent with the most time if it's not 50/50.

The legal definition of parent with care, and the CMS definition are not the same. To accept there is no CM payable, CMS would need to see a court order saying the children live with both parents equally on a 50/50 basis. Even then, in some cases, a Dad has been told he still has to pay CM because the order times are to and from school meaning they are technically in the Mother's care more - ie during the school days if they're off. And if there is a slight discrepancy over equal time, CMS consider the parent with care to be the one who receives the child benefits. Which is usually the Mother.

The whole CMS thing is wrong. It should be means tested for a start off. ie if a Mother is earning more than you, she should not be eligible for CMS based on your income only. But that's the way it is - write to your MP!

The system is archaic and assumes men are the main breadwinners and wasters who abandon the wife and kids. It's black and white.

 

[Clockwork]

Hi thanks for that, but this is why I posted in the first place. She pays her 50% of the mortgage regularly and i have missed 4 months in 18 months, I think she pays mine if I default in order to keep a squeaky clean credit score. She is good with money, and leans heavily on her parents for support. I’m behind with CMS to the tune of about £1k, and wondered if that will affect my chances, I heard that family court do not allow finances to be involved.
As she has no abuse whatsoever with the children, and neither do I how do either of us tip the balance so that I get my 50% lives with ?

Thanks for your advice on this.

 

[Ash]

She could claim you are witholding CMS payments as an argument for you not coparenting well. Finances are separate from child arrangements but behaviour is taken into consideration as well. It can also help a case if a Dad can say he has always paid CM and never missed a payment and also does xyz. It's complex. If she does argue something like that, you could say that the divorce financials are currently being resolved as well. But - the danger is they might think you're only applying for 50/50 to avoid CMS which isn't seen as child focused.

 

[Clockwork]

To recap, to achieve 50/50, I have to prove to Cafcass in the first instance that I am good at co-parenting (whatever that means), and make her look like she can’t co-parent, and be prepared to rebuff any claim by her that I am only doing this to get off collect and pay via CMS ?
Any ammunition that you may have to convince the authorities that the children will benefit from one night per school week extra would be appreciated, I’m struggling here, and should I save that for court or bring it up at the S7 interview ?
And afterall, they might rule 50/50 but I still have to pay through CMS
Another thought is that the Cafcass telephone interview before court and the court order for a Cafcass Section 7 does not mention any conflict which is clearly between us. Could she backtrack and bring this up at some stage ?
thanks

 

[ESU]

My experience is that you need to bring this up in the S7 interview, in a way of being very child focused and concerned and tell the case worker why you propose it. At the end of the day I believe CAFCASS will try to be neutral if there is no abuse or violence in the family.
Regarding if she can backtrack ( like my ex who brought fresh allegation against me suddenly at the very end of the first hearing, which wasted my time to clarify in the S7 interview), I believe if she does that, you can use it as a proof that she cannot provide reliable evidences in the case, which is not in her favour. I believe you always need to be consistent during the whole proceeding so that the court, CAFCASS will believe you are a reliable and good person, thus a good dad.