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What Rights Does My Ex Have With Regards to Our Children?

Author: Elizabeth Mugan BA/BSc, PGDipLaw, BVC, CIArb - Updated: 27 May 2015 |
 
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We get many comments and questions from you about child support. We've taken a selection of your comments addressing the issue of keeping contact with your children and the fear of your ex taking them from you - and asked our expert to give some comprehensive information and advice.

The traditional view of the family set up has become something of a minority in 21st century society and because of this, a broken down relationship can lead to complicated legal issues. Whether you are recently divorced and wondering about the role your ex-husband has in your child's life, or you have a child from a relationship that has broken down, but were never married, you need to understand your legal position when it comes to creating an amicable situation for your child to grow up in. Here we aim to dispel some of the myths about parental access and to give you the advice you need to rebuild your life and your children's lives.

Parental Responsibility

Parental responsibility (also known as PR) creates "responsibilities" rather than "rights" regardless of whatever the state of the parents' relationship, emphasising the view that each will maintain an equal, shared and continuing responsibility towards the child.

Where both the mother and the father have PR, they have the power to act alone unless there is a circumstance where, by law, each person with PR is to give consent i.e. in the case of adoption. In reality, holding PR gives the ability to make decisions in relation to the child's name, religion, school, consent to medical treatment and marriage etc.

Who has Parental Responsibility?

Below is a flow chart to help you determine if you have Parental Responsibility:

A mother always has PR. A father who is married to the mother at the time of birth will automatically have PR.

To clarify, for unmarried fathers, the situation is different. Unmarried fathers will have PR if:

  • They marry the mother after the child is born
  • They have jointly registered the child's birth with the mother i.e. their name is on the birth certificate
  • For pre December 2003 registrations, the mother provides a formal declaration of agreement that the father's name is to be added to the birth record and the father re-registers the birth to add his details
  • The court orders a residence order in favour of the father, although this will usually terminate when the resident order ends (generally age 16)
  • A birth parent has signed a parental responsibility agreement
  • A step-parent's PR agreement can be made by consent with all those already having PR for the child
  • By obtaining an adoption order from the court

Where a father has not automatically gained PR, the mother does not have to add the father's name to the birth certificate. However, this will not stop the father from being able to apply to the court for an order, such as a parental responsibility order, which may result in him acquiring PR.

Other family members

Other family members, taking grandparents as an example, do not automatically have PR. They would only be granted PR by a court if, for example, they were appointed as Guardian or were to adopt their grandchild for any reason. If a father with PR asks his parents to take care of the child, they can do so usually without the mother's agreement. However, the child would not be able to remain resident with the grandparents unless they had been granted a residency order by the court.

Voluntary access arrangements

If more than one of you has PR, then the best thing you can do for both your children and yourselves is to voluntarily agree to contact and access etc. If you can do this, then you are more likely to maintain a more harmonious relationship for the sake of your children. Additionally, it will prevent you from having to go to court and from having to pay court and solicitor's fees if you are unable to get legal aid.

Of course, this is the ideal scenario and not always a realistic one. If you cannot agree on residence and contact etc. then you may find that your ex will end up applying to the court for an order.

My Child has Been Taken Away From Me: What Can I Do?

Unfortunately in some circumstances, a father may take your child during agreed contact time and then refuse to bring them home again. If this happens and you are unable to negotiate with the father then you should call the police. However, the police may not be able to do anything. This generally comes down to whether or not the father has PR. If they do not, then the child is the mother's sole responsibility and the police may be able to take the child back to the mother. If the father does have PR, then in usual circumstances, they have the same rights as the mother to look after the child and therefore, so long as the child is not in any harm, the police cannot usually do anything about it. This can be understandably distressing for a mother. What can be done about it?

Residence Orders

A person can make an application for a residence order, whether or not they have PR. For example, a father without PR can make an application for and be granted residency but then he will automatically acquire PR at the same time. It is unusual for a father to be granted residency as well as a mother as this would result in shared residency, which is not always in the best interests of the child. As a result, it is usually the mother who would be granted sole residency.

If a child has been taken by their father and the police cannot do anything, the mother can make an application for a residency order. If the child was snatched or she believes that her child may be in danger, then she can apply for an emergency ex parte application. This is also known as a 'without notice application' i.e. the other party is not given notice of the application. If the mother cannot make an ex parte application then an application can still be made but the father can attend and make his case. At the end of the hearing, the judge will make an order.

There are lots of other orders which the court can make, including contact orders, prohibited steps orders and specific issue orders.

What Factors Will be Taken Into Account?

When reviewing applications, the court will take a number of factors into consideration with regards to the child or children's welfare. These are:

  1. What is best for the child and the feelings and wishes of the child. This is considered according to the child's age and understanding
  2. How capable the parents (and any other relevant people) are of meeting the needs of the child or children
  3. Any harm that the child is at risk of suffering or has suffered
  4. The likely effect of a change of circumstances on the child
  5. The age, background, personality, sex and any other characteristics that the Court believes to be relevant
  6. The child's emotional, physical and educational needs

Domestic abuse

If you have been subjected to domestic abuse, this would clearly be a very important factor for the court to consider when determining what will be in the best interests of the child. If the father makes an application to the court then you can oppose it by giving evidence as to why he should not be given the order. You can oppose any application in much the same way.

Reality Check

When you find yourself fighting to look after your own child your emotions can begin to take over. It is important when you begin to plan your child's parenting and the access of the father that you understand the law and how it might impact on your child's future.

Remember that if your child's father is on the birth certificate, or you were married and are now divorced, the father has the same access to the child as you do in the eyes of the law. If they take your child or even threaten to do so, the police can often be powerless to change the situation. The best advice is to seek mediation and organise access in a written agreement, give yourself something concrete to work from. If your ex is unreasonable then apply for a residency order to ensure that you keep custody of your child.

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Leave a Comment, Ask for Advice or Share Your Story...
[Add a Comment]
I have separated from my husband of 10 years in January it has been 4 months now and I have our 3 children with me - I do not want any contact from him so haven't disclosed my contact details to him but now he's taking me to court as he's applied for visitation rights can I oppose this? And on what grounds? Is it possible to apply for a residency order? I have suffered years of domestic abuse but have never reported to authorities so I'm afraid nobody would help!
Nina - 27-May-15 @ 6:53 PM
Hi, my husband has two children from his first marriage 12 and 18.Their mother has been vindictive and difficult for a number of years, we have always maintained the moral high ground and not berated her to the children.She has however never shown the same respect.She doesn't work and has spousal maintenance and a signigficant amount of child maintenance. When she met her partner things improved slightly and he tried to improve communication between everyone.However in February the children rang as there had been a violent incident at there house where she had physically attacked her partner and been verbally abusive to his children and her own.The youngest came to live with us for a while and I was very instrumental in helping to build bridges so he could see his mum again, I am reluctant to help again as she calls me dreadful names to the children.Unfortunately the youngest has been subject to continual emotional abuse since regarding us and her partner and anyone else she sees fit to berate.The youngerst has had enough and wants to be with us, however she is pestering him and trying all sorts of bribes to get hime back.We are tring to do what is best for him but we are unsure of how to handle it.According to the child the abusive behaviour and fighting have been the norm for some time.Her friend has told us in confidence that she believes she has a drink problem. The eldest child is trying to stay out of it as he has put up with this beghaviour for a long time and has almost become numb to it.Any advice would be gratefully received.
worried about doing - 21-May-15 @ 12:35 PM
Hi, my husband has two children from his first marriage 12 and 18.Their mother has been vindictive and difficult for a number of years, we have always maintained the moral high ground and not berated her to the children.She has however never shown the same respect.She doesn't work and has spousal maintenance and a signigficant amount of child maintenance. When she met her partner things improved slightly and he tried to improve communication between everyone.However in February the children rang as there had been a violent incident at there house where she had physically attacked her partner and been verbally abusive to his children and her own.The youngest came to live with us for a while and I was very instrumental in helping to build bridges so he could see his mum again, I am reluctant to help again as she calls me dreadful names to the children.Unfortunately the youngest has been subject to continual emotional abuse since regarding us and her partner and anyone else she sees fit to berate.The youngerst has had enough and wants to be with us, however she is pestering him and trying all sorts of bribes to get hime back.We are tring to do what is best for him but we are unsure of how to handle it.According to the child the abusive behaviour and fighting have been the norm for some time.Her friend has told us in confidence that she believes she has a drink problem. The eldest child is trying to stay out of it as he has put up with this beghaviour for a long time and has almost become numb to it.Any advice would be gratefully received.
worried about doing - 21-May-15 @ 12:15 PM
My ex has just told me he is going to take forms into court tomorrow. He was violent to me for yrs and it ended when he was violent to my 14yr old son. Our daughter is nearly 2 and he had all the access he liked so he could have a relationships with her. He has paid £20 since September 14 and doesn't beleive he has to pay maintenance. He has been drinking whilst I charge of our daughter and has no intention of stopping drinking. So over10 weeks ago now he refused to pay any obey and continued to suggest I was mental and therefore I am not capable of bringing her up, also said if I'm asking for money I mustn't be able to afford her so he said he was taking me to court for full custody, since then he called social services, went for mediation that I declined and got his family to hassle me. Bearing in mind after that phone call he made no other effort to see her and in my eyes now it's been to long and have made the hard decision to not let him see her in the future. I am so worried about what the process is when he takes me to court. It is not fare on her to do this length of time without him then back in her life on and off. There are many reasons why he is not stable for her I just don't want to go through all this when it was him that chose not to see her and go this way. What will happen once he takes papers in tomorrow???
Cmwellies - 20-May-15 @ 2:03 PM
My ex husband and I have been separated for 2 years, in this time he hasn't bothered with our two children 7 & 5 yes old. He told me 2 weeks ago he was wanting the children for 2 weeks and that I could get the house sorted out whilst they were there. I have done this and he's now saying it has to be up to his standards before he will let them come back. Today is the 2 weeks up and he says he isn't giving them back and making up things to keep them. Saying I have mental health issues and that I will only get them back with a court order. He hasn't paid anything towards their upbringing and I have no money to do this and he knows that. I am at a loss of what I can do to have my children back.
lissia - 20-May-15 @ 8:15 AM
My husband had an affair when our son was 6months old, spent weeks at a time out and at her house as I tried to make him realise what he was loosing, it all came out a year after and he moved out of the house, we have been fine with sharing our child over the year we have been split and now he wants to sort set days for having him, how often is normal and that he has rights to?
Rachel - 19-May-15 @ 9:57 PM
@Angel - I am very sorry to hear this. I think in this instance you also need someone you can talk to directly, so I recommend Family Lives here, in order to get some initial help and support and to see if they can point you in the right direction in order to get back on your feet and get access to your son. You say you are homeless, if so the council may be able to help re-home you, if you have nowhere to live, see link here. You can apply through the courts to see your son and if you have no income, you may be able to get some free legal help. You will need a c100 form to apply for contact to see your son, see A Guide to Court Orders on our Courtroom Advice page here. I hope this helps.
ChildSupportLaws - 12-May-15 @ 2:21 PM
@worriedmummy - you have a right as your son's mother to lay down terms of what you want the arrangements to be with your 'ex', especially if he has had little contact with him. If you think it is too soon and he doesn't know his father well enough yet then you have every right to put your point across. If the father doesn't agree then it will be up to him to apply for a court order. If he applies for a court order, it is likely that the court will suggest mediation, see our partner Separated Dads site article Mediation: What is it and is it For Me? here. This gives you a chance to specify your reasons to an intermediate third party who will also speak with your ex and try to make a resolution that works for you all. You don't have to agree to anything you don't want to. The mediator will try to help you come to a decision that suits you both. Only if a mutual agreement is not agreed, then it will be passed over to the court to decide, what it thinks is in the best interests of your child. However, it sounds like you are willing to compromise and this will stand you in good stead when trying to reach a mutual agreement that will benefit both parents and your son and that will prevent it going to court. I hope this helps.
ChildSupportLaws - 12-May-15 @ 10:34 AM
Hello I am in desperate need of help, about a year ago my sons father forcibly removed me from our property and away from my 9 month old son, all because of my mental state (I begged him to help with our son, had no sleep for 3 days and he hadn't helped night or day only on his car) so I called social services who advised me to seek medical help, which I did, once coming come he didn't allow me enters and speculated that I was a danger to My sons lik ( considering I was his sole provider for nearly a year and his father left for work with complete trust in me to look after our child) my son was a health, happy, bounce baby boy, nothing wrong with him, above average so I was raising him properly. Anyway now a year down the line he will not let me see my son, nor have any photos or calls to him causing me great discomfort and to be quite frank it's killing me inside, I've listened and done what he's asked of me yet it isn't enough, I'm to young to afford my own home I also have physical problems including fibermialgia an hyper mobility but they haven't ever got in between caring for my son... So yes I'm homeless 19 year old mother with mental and physical problems with no hope in the world to get my beautiful boy back in my arms... It's been 6 weeks since I last saw him...just wish someone could help me... Please I beg you, I've had enough mental abuse this past year and 4 years of physical abuse from his father (young,stupid and petrified ) just want my baby back ... He's two this month... Not allowed to see him on his birthday either... Please help me?.. I have no one else
Angel - 10-May-15 @ 4:37 PM
My son's dad (I say that instead of 'ex' as we barely know each other, my son was the result of a fling) has just informed me he would like to begin having my son overnight twice a month. I'm happy for this to happen...This time next year...when my son will be three and speaking properly, completely toilet trained, settled in a big boys bed and new routine in his own bedroom. I feel his dad is only asking for this now because his gf is pregnant and they are the sort of people who have always liked to put on a front and appear this wonderful perfect family. Do I have any grounds at all to refuse overnight stays until my son is at least three years old? I should mention his dad wanted nothing to do with my son until he was two months old after id pushed him into getting a dna test done that he said he needed. I had issues with his dad when my son was newborn regarding his behaviour around my son when he saw him naked (inappropriate comments he'd make about his privates and taking way too many pictures of him naked). He was also uninterested in my son's basic needs and communicating with me about how to care for my son when he was younger preferring to just spend his time with him taking photos together so he could appear this doting dad to all his friends and family (like I said, just a show). The man has a lot of money and knows a lot of people in the right jobs...I'm really worried he'll take me to court and end up with not only overnights at this young age but maybe joint custody as he threatened me with this before in an argument. Please help :(
worriedmummy - 10-May-15 @ 7:08 AM
My son's dad (I say that instead of 'ex' as we barely know each other, my son was the result of a fling) has just informed me he would like to begin having my son overnight twice a month. I'm happy for this to happen...This time next year...when my son will be three and speaking properly, completely toilet trained, settled in a big boys bed and new routine in his own bedroom. I feel his dad is only asking for this now because his gf is pregnant and they are the sort of people who have always liked to put on a front and appear this wonderful perfect family. Do I have any grounds at all to refuse overnight stays until my son is at least three years old? I should mention his dad wanted nothing to do with my son until he was two months old after id pushed him into getting a dna test done that he said he needed. I had issues with his dad when my son was newborn regarding his behaviour around my son when he saw him naked (inappropriate comments he'd make about his privates and taking way too many pictures of him naked). He was also uninterested in my son's basic needs and communicating with me about how to care for my son when he was younger preferring to just spend his time with him taking photos together so he could appear this doting dad to all his friends and family (like I said, just a show). The man has a lot of money and knows a lot of people in the right jobs...I'm really worried he'll take me to court and end up with not only overnights at this young age but maybe joint custody as he threatened me with this before in an argument. Please help :(
worriedmummy - 9-May-15 @ 9:21 PM
My son's dad (I say that instead of 'ex' as we barely know each other, my son was the result of a fling) has just informed me he would like to begin having my son overnight twice a month. I'm happy for this to happen...This time next year...when my son will be three and speaking properly, completely toilet trained, settled in a big boys bed and new routine in his own bedroom. I feel his dad is only asking for this now because his gf is pregnant and they are the sort of people who have always liked to put on a front and appear this wonderful perfect family. Do I have any grounds at all to refuse overnight stays until my son is at least three years old? I should mention his dad wanted nothing to do with my son until he was two months old after id pushed him into getting a dna test done that he said he needed. I had issues with his dad when my son was newborn regarding his behaviour around my son when he saw him naked (inappropriate comments he'd make about his privates and taking way too many pictures of him naked). He was also uninterested in my son's basic needs and communicating with me about how to care for my son when he was younger preferring to just spend his time with him taking photos together so he could appear this doting dad to all his friends and family (like I said, just a show). The man has a lot of money and knows a lot of people in the right jobs...I'm really worried he'll take me to court and end up with not only overnights at this young age but maybe joint custody as he threatened me with this before in an argument. Please help :(
worriedmummy - 9-May-15 @ 8:24 PM
@workingfather - under the flexible working rule, can you not have a word with your employer and spell out the problem by asking him/her to guarantee one night per month that you either have off, or to work a certain shift pattern? It seems a bit off that you can't specify one night in 30/31 days that you can have your child, when your partner is having to do the rest of the work, the rest of the time.
Si - 8-May-15 @ 11:36 AM
Hi, I recently split up with my wife and we agreed verbally that I would have my son for a night a month. Due to the nature of my job, I cant guarantee what days I can have my son as I work unsociable hours meaning she is now taking me to court. Advise please as I don't know what to do. TIA.
workingfather - 7-May-15 @ 3:25 PM
Me and my ex husband have a shared care custody in place but he is not involved in their lives he remarried again and ever since he hasn't taken any responsibility of our 2 children. He works full time and after that my kids still Dont see him. The grand parents (his parents) have no rights towards the children but my ex has left all Responsibilties to them where as this court order was between me and him only. Recently I had to get social services involved as the grandmother assaulted my children and they were left with bruises. I informed the police social services and even took them to hospital. My children are 7 and 8 and they keep telling me not to send them back to their grandparents or even their father as they don't have that bonding with him in the first place. Will there be any possibility that I get sole custody but allow the father to see the children in a contact centre? I'm really confused and just upset about the whole thing please advice me on what to do next..
Kiz - 4-May-15 @ 8:29 PM
Me and my ex husband have a shared care custody in place but he is not involved in their lives he remarried again and ever since he hasn't taken any responsibility of our 2 children. He works full time and after that my kids still Dont see him. The grand parents (his parents) have no rights towards the children but my ex has left all Responsibilties to them where as this court order was between me and him only. Recently I had to get social services involved as the grandmother assaulted my children and they were left with bruises. I informed the police social services and even took them to hospital. My children are 7 and 8 and they keep telling me not to send them back to their grandparents or even their father as they don't have that bonding with him in the first place. Will there be any possibility that I get sole custody but allow the father to see the children in a contact centre? I'm really confused and just upset about the whole thing please advice me on what to do next..
Kiz - 4-May-15 @ 8:19 PM
Hi I'm a father of 4 really great kids I have used cannabis in the past & so as my exwife she's now stopped me seeing them at my home on the nights arranged claiming it's a drug den even though she's been informed otherwise. She now only let's me see them 2.30 hrs a day. All I want to do is be a dad Do I have any rights to make her stop being stubborn as she's only doing this after an argument Thanks
dadof4 - 3-May-15 @ 2:08 PM
Hi my 8 yr old daughter asked can she live with her dad,I said yes so she went back to her old school, following week she came back to me,but she back with her dad again because of her school,I'm having alot of grief from him, his girlfriend should I bring my daughter back put her back to the original school.
paulabear - 1-May-15 @ 6:46 PM
Hi, my son is three months old, and my ex partner although living in the same house was never been a hands on father, and almost never participated in his care and has never spent any time alone with my child. I have offered him contact in my house, as he had no where to live, as long as I am in the house. I have said that I will not interfere with their time together, but I'm worried that he knows nothing about caring for him, I said after a month when they've spent time together we can reevaluate the agreement. He said this is not good enough and that I can't stop him taking him out to spend time with him. I was wondering where I stand with this?
Kiraike - 30-Apr-15 @ 12:32 AM
@Gobsmacked - I am sorry to hear this. I have included a link from Advice Now here which may help to answer your question and point your son in the right direction regarding what to do.
ChildSupportLaws - 29-Apr-15 @ 2:00 PM
@stac - if you feel your son is not being cared for, and you have spoken to him about the issues that are concerning you and have not had a result, you could stop your ex taking him and only let him see his son if supervised by you. You could either apply to do this through the courts, or if your ex was unhappy with your decision, he would have to take it to either mediation or it would be left to the courts to decide.
Matty - 29-Apr-15 @ 11:26 AM
I have an acces order in place whereby I have contact with my daughter every Wednesday evening and every 2nd weekend for 3 nights. My ex wife is going on a hen weekend next month (on the weekend when I do not have contact with my daughter). While away she intends to put my daughter to her Grandparents for the 2 nights. I suggested my daughter could stay with me those two night but my ex wife refused.As I have aprental responsibility, could I insist that I care for my daughter that weekend?
Doting Dad - 29-Apr-15 @ 8:38 AM
@Lofc - I have included a link that tells you when child maintenance payments will stop here. As far as giving him your telephone number, you are not under any obligation and you can continue to let your ex contact your son directly.
ChildSupportLaws - 28-Apr-15 @ 12:01 PM
@Mary - it sounds like you are in the US, and this is a UK-based site, so we know little about American family law. However, I suspect even if you asked this question to someone who was familiar with US family law, they would tell you it is impossible to predict what a court may decide.
ChildSupportLaws - 27-Apr-15 @ 12:48 PM
@ataloss - I have directed you to the Ask The Police website, via the link here. It will tell you that: 'if you feel that you are being harassed and you want to involve the police then you should contact your local police on a non-emergency number and they will take details. If there are any threats of violence towards you, you should inform them, and they will treat the matter with greater urgency. If you don't want to involve the police, you can see a solicitor who can, if necessary, begin civil proceedings. If your claim succeeds you may be awarded damages and/or an injunction. If there are any threats of violence then you are always advised to involve the police.' You can get more information via the website on the best way to do this. I hope this helps.
ChildSupportLaws - 27-Apr-15 @ 10:38 AM
Some advice please.My son was with his ex partner for six years. She was pregnant when they met and he has brought the child up as his own. They went on to have another child together, however she walked out two years ago.My son has continued to be dad to both children and has them overnight three nights a week, provides clothes, takes them on outings etc.she has just announced that she is getting married and has said as far as the second child is concerned he will obviously still be dad but they have asked him to stop being dad to the first one and become an uncle instead.Is there anything he can do?He treats and loves both the children the same and is devastated.Even worse he is very concerned about the impact this will have on the child.
Gobsmacked - 27-Apr-15 @ 6:52 AM
Hi. I have a 3 year old and me and my ex have been spilt just under to years...and iv had nothing but hassle off him. If had to het a resident order out on him. He still sees him but my sons coming home saying hes not been fed or had a drink and my ex is letting my son go owt to play by his self were theres cars coming and going. I dont feel safe when my sons with him. And I need help what can I do???
stac - 26-Apr-15 @ 7:19 PM
My son is 16 and in his last year of school, he is due to start collge in September.His father(ex husband not divorced yet) has now told me that he will be stop paying maintenance when he finish school as he doesn't have to pay after that.Is this right?Also he is demanding that I have to give him my telephone number as a emergency contact. I don't want to do this as I'm not putting up with verbal abuse. I'm I within my rights to refuse, also he can contact my son as he has a mobile which his father pays for.
Lofc - 25-Apr-15 @ 3:33 PM
My brother's unwed wife just took his kids out of school (one month before school year end) and left the state without letting him know.She threaten to harm the kids and himself a month before she took off, but he didn't report her.He only have his family member witness.He couldn't get a hold of his kids; he called their mother and left messages and text her to call him back so that he can talk to his kid but no respond.He called her family members but no pick up.He did consulted a family lawyer and report missing person on the first day that we couldn't find them.What are the chances that he will get custody of his kids?
Mary - 24-Apr-15 @ 3:21 PM
I've split from my children's father and moved away from the town where we lived. Only 10 miles in the next town. My ex has agreed that he will have the children every other weekend but when it comes down to me and my new partner being able to plan anything to do we cant because we never no what time the children are being picked up and what time they are being dropped off. Or sometimes he will text the day befor to say he can't have them due to him working. All this normally ends in a massive argument. So I've asked him to sign a piece of paper saying the times he's having the kids and the times he's having them but he's refusing to do this, I've told him he's not having the kids till he does this am I being unreasonable by doing this ?
Mummyof3 - 24-Apr-15 @ 1:59 PM
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    hiya i am in abit of a pickle i do not know who to talk to or what to do i was living with my ex partner (never married) for one…
    28 May 2015
  • Elle
    Re: Moving Abroad, The Issues
    @Blackbeard - it would be something that she would have to take back to court in order to get permission or the order lifted on that…
    28 May 2015
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