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

By: Elizabeth Mugan BA/BSc, PGDipLaw, BVC, CIArb - Updated: 21 Oct 2020 |
 
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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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[Add a Comment]
Hi, my son has been living with his father but I hold joint PR but there is no legal paperwork for this. My son is 14 and wants to live with me and his sister but his father is refusing to allow this. My ex is manipulative and wants to talk to my son to try and get his own way and promise change but this is only ever a temp thing. My son goes hungry at his fathers and sleep deprived. He uses my son a slave and his mental health is at an all time low. I need to help him please any advice ?
MrsB - 21-Oct-20 @ 10:43 AM
My sons ex girlfriend is going to brazilbut leaving there son here in the uk with a baby sittermy son has pr can he go get his son
Sue - 29-Sep-20 @ 10:22 PM
So my ex mislead me thinking he has status in the UK. Turned out that he lied and I had a child with him. Now I feel used because he now wants to use us to get stay in the UK. He was abusive and wants to see our child but I don’t trust him and want to report it to the home office as his application is still being processed. I just want to protect my child away from him and his toxic family. I had to ask him to leave my home so I don’t know where he lives. The other day he harassed me giving me 14 missed calls. What can I do?
Rainbowstars - 9-Sep-20 @ 12:54 PM
I am seperated from my wife, I am not happy about a female friend of hers that she keeps company with when with children, this person is under the influence of drugs its not alcohol therefore I am not happy for my children to be around this person do I have any rights to stop this.
williams - 8-Sep-20 @ 2:09 PM
Hi i recently found out I am pregnant with my exs child, we had split up due to the fact he was emotionally abusive a secret drug user and it came to a head when he got particularly aggressive towards me and trashed my house during a certain episode. Shortly afterI realised I was late so took a test and its positive, I have appointments with Dr's and such but when I told him he blocked me on every platform. Yet I fear he will try to gain contact when the baby is born, how could I stop this contact from happening or have some protection as due to his nature and behaviour i am worried he may possibly be agressive towards the baby or myself during the rest of the pregnancy
Jane - 31-Aug-20 @ 12:31 PM
hi just wondering where I stand in regards to parental responsibility my ex wife and I divorced 10years ago all this time I have had very little contact with child due to the toxicity between ex and myself do I still have parental responsibility child now 18 have had no contact for last 6 years many thank
dunk - 28-Aug-20 @ 2:34 PM
Hi, I was recently a victim of domestic violence, I left the relationship but then my ex partner could not get intouch with me he rang my child's father who then brought him to my address where my child was, he has now took my son as he has pr but is not letting me see him only only time that suits him, he stated that he was scared of my ex but he brought him to my property. He is now saying he is going for full custody of my son because of the domestic violence, my son has never witnessed anything.. I still have pr of my son my his father is emotionally and controlling me x
Caz - 28-Jul-20 @ 7:24 PM
My nine-year-old stepdaughter claimssheis being abused at her mother's house. We have tried calling for a restraining order but was denied because she was denied because she was not in immediate Danger and we have called DSS but she refuses to talk to them because she's afraid that she'll be beaten by her mother if her mother finds out she has to talk to them she's been completed to Stay With Me and her father mother has primary placement of the child. We have visitation rights. The mother has not followed the visitation rights for over 5 years is there any legal way that we can hold the child here until our court date of custody when the child refuses to go back to their mother
Help - 24-Jul-20 @ 1:54 AM
Hi, i need advice for my daughter who has a week old boy and is very anxious that if she gives her son to her ex partnerwho has PR then he will not give him back, what can she do legally.
Liz - 19-Jul-20 @ 4:36 PM
My daughters (my daughter is aged11) mother called me on Sunday demanding I collect my daughter as they had yet another fairly heated argument and she didn’t want her in the house with her two sons (not my kids) aged 4 and 2. These heated arguments have gotten progressively worse over the past 3 years and have resulted in violence from my daughter and then a call to me to collect her as the ex can’t deal with her. So as requested on sudsy I collect my daughter, she has stated repeatedly she wants to stay with me and live here as she feels a lot calmer and her sometime violent behaviour doesn’t happen with me and there are few arguments at my house. Now my ex had obviously gone nuts saying she can’t stay here and came to collect her on the 1st July 2020 but my daughter refused to go with her again stating that she wants to live with me and wanted to stay with me. I asked my ex to outline what she wanted regarding contact but she has refused to say anything. She has now said she wants me to drop my daughter back on Sunday of this week, I’m concerned I won’t get her back again. I have PR and just wanted to know what obligations I was under to take her back. Further if my daughter refuses to go does that improve the situation
MrBiscuit - 2-Jul-20 @ 8:55 PM
My daughters (my daughter is aged11) mother called me on Sunday demanding I collect my daughter as they had yet another fairly heated argument and she didn’t want her in the house with her two sons (not my kids) aged 4 and 2. These heated arguments have gotten progressively worse over the past 3 years and have resulted in violence from my daughter and then a call to me to collect her as the ex can’t deal with her. So as requested on sudsy I collect my daughter, she has stated repeatedly she wants to stay with me and live here as she feels a lot calmer and her sometime violent behaviour doesn’t happen with me and there are few arguments at my house. Now my ex had obviously gone nuts saying she can’t stay here and came to collect her on the 1st July 2020 but my daughter refused to go with her again stating that she wants to live with me and wanted to stay with me. I asked my ex to outline what she wanted regarding contact but she has refused to say anything. She has now said she wants me to drop my daughter back on Sunday of this week, I’m concerned I won’t get her back again. I have PR and just wanted to know what obligations I was under to take her back. Further if my daughter refuses to go does that improve the situation
MrBiscuit - 2-Jul-20 @ 4:51 PM
My daughters (my daughter is aged11) mother called me on Sunday demanding I collect my daughter as they had yet another fairly heated argument and she didn’t want her in the house with her two sons (not my kids) aged 4 and 2. These heated arguments have gotten progressively worse over the past 3 years and have resulted in violence from my daughter and then a call to me to collect her as the ex can’t deal with her. So as requested on sudsy I collect my daughter, she has stated repeatedly she wants to stay with me and live here as she feels a lot calmer and her sometime violent behaviour doesn’t happen with me and there are few arguments at my house. Now my ex had obviously gone nuts saying she can’t stay here and came to collect her on the 1st July 2020 but my daughter refused to go with her again stating that she wants to live with me and wanted to stay with me. I asked my ex to outline what she wanted regarding contact but she has refused to say anything. She has now said she wants me to drop my daughter back on Sunday of this week, I’m concerned I won’t get her back again. I have PR and just wanted to know what obligations I was under to take her back. Further if my daughter refuses to go does that improve the situation
MrBiscuit - 2-Jul-20 @ 4:07 PM
Hi, the children’s father walked out on us a year ago. I have never excluded him from my daughters lives whom are 4 and 6 years old. He would came to see them a few hours a week, take them out locally or recently to his flat that is locally.. now he is living with his girlfriend 40/1hr away from us and he asked to take them to hers on Saturday.Can I refuse this, I’m really worried that he might not bring them back (we have our first mediation on Monday) please note, he has been mentally and physically abusive towards me, has a history of alcohol use, he is controlling and manipulative to get his own way.. should I let my kids go, if I say no for them to go far away, would it go against me in mediation/court, please help any advise would be greatly appreciated. Thank you
Emma - 1-Jul-20 @ 9:26 PM
Advice given as been in similar situation for a number of years. Mine is getting easier but still a struggle in ways. If a child lives or already is in the care of the main parent with out a residency order the other parent can take the child. A child arrangement order ( CAO) is also required. Apply to the courts for this and try internet to start the application ( May cost a bit but is the best way to get this secure. If the parent is not on the birth certificate they do not have the right to take the child or have any legal rights. If the parent who has not seen the child from 6months Onwards 0 contact no contact with in that time, you can apply to the court for full custody as the absent parent is not considered as a child’s best interest of importance. Child maintenance is free to set up with them and they can track the absent parent, details would be name, number if have it ( not important) Address or area known even old address. Work info Any info on the parent. Any domestic abuse apply for a order if not safe to minimise contact while it get investigated and arrange contact centre supervised if safe enough, but most importantly a residency order needs to be applied also while doing this, report to police and women’s aid. Hope this helps
Dede - 25-Jun-20 @ 9:07 PM
Hello. My ex disappeared when l was 5 months pregnant after promising to be there for his child initially, l learned he had moved in with a woman with 2 children, not his. He has never seen our daughter who is now 2 years old. He has no PR, we were never married, name not on BC. DNA test done by Child Maintanance as he was denying paternity, still hasn’t paid anything towards his child after positive DNA. Child Maintanance now taking him to court but he is self employed, has a business partner, 50/50 owned. Business is now being liquidated, does this affect my court case for him to pay towards his daughter? I suspect this is his way of hiding money or moving it around. There have been no funds in his bank account when Child Maintanance went to his bank to seize what was due, l know he has been earning something. Please help.
Wednesday - 24-Jun-20 @ 2:33 AM
If the father is not on the birth certificate. Was incarcerated about the length of my child’s life . & now demands rights . What are my right and what concerns am I allowed to present as he does have a track record of being incarcerated. my child does not know him well enough to have any visitation without me present . What are my rights ?
Ayloo - 20-Jun-20 @ 8:58 AM
Hi i really need your help please..my baby father borrowed my son last year...but now if i want my son he just want quite....it's been a year now
Kholie - 19-Jun-20 @ 11:32 PM
Hi I’m looking for some advice, my ex partner has PR however he doesn’t see our son because he chooses not to, he will contact usually daily to speak to him etc but however if something happens and we have a disagreement over something he starts to threaten to come and take our son from me, insinuating he is a better parent than myself when I have a lot of reasons why if he turned up I wouldn’t let him go, can the police do anything in this situation, is it worth ringing to report these threats?
Sj04 - 3-Jun-20 @ 4:19 PM
Hi im 15 years old, my dad cheated on my mum when i was 9.The women my dad cheated with thinks she can control me and tell me What i can and Cant do shes vile to me and my family what should i do?
Kate - 20-May-20 @ 6:48 PM
Your a bunch of controlling freaks man... get a grip of yourself, be an adult meetface to face, use reasonable words or have a mediator present. What's with these threats of courts and with holding custody? It's nonsense and you should be ashamed of yourselfs. I get most of your situation and it s scary but half of the comment section is full of vindictive snakes looking for control.
Cappy - 1-May-20 @ 9:34 PM
I need urgent advice. My daughter has just had a bsby. The father has not paid a penny either before the birth or after for the child even though he promised to pay for the child. He wants access everyday but doesn't want to help with money, not even buying nappies and milk. Hes insisting the baby has his surname. What are our rights. I'm very concerned.
Worried grandparent - 24-Apr-20 @ 5:51 AM
Hi me and my ex girlfriend are expecting a new born baby for the first time and we broke up and I started getting messages off her new partner one in which he threatened me and said horrible stuff so he should be deemed as a danger to my child when he/she arrive. Is there any way I can stop him from having any kind of contact with my child. So that my ex partner can see my child without him.
Will98 - 30-Mar-20 @ 5:55 PM
My o /off narc partner has taken our 2 kids to see his brother while his wife is there when I'd told him not to. Got no problem seeing g their uncle but I've never seen this woman and I'm never invited. He met her online and married her after a week. My argument is she could be anyone he doesn't know anything about her. Does anyone agree with me or am I in the wrong?
Gigi - 11-Feb-20 @ 7:29 AM
Hello I have 2 kids a 12 n a4year oldsfew years ago I went true domestic violance and had to run been in a refuge n manage to get life bk track so few years later found out ma eldestis a diabetic type 1 wit no families in the country I tried make it up wit him so we could get support but he started mentally abuse n I feel his trying to turn my kids against mi, says am and mom because I went true depression n anxiety so his constantly saying hi will take dem from mi am really scard simply because his on birth certificate, wat can I do will he be able to take my kids?????
Tatty - 4-Jan-20 @ 1:32 AM
My ex was abusive and is really narcissistic. I've spent years in therapy healing from PTSD and post natal depression nd am finally getting to a great [lace and now he wants to have my son for half the week - he's always had him for a third of the week and has wanted more time but always on his terms. He's now speaking to my son about how unfair it all is on Daddy and my son keeps speaking to me about his Daddy's needs and how unfair I am being and that he wants to be with dady but I know where all this is coming from. now, his father is sending me lots of emails about how I am messing up our child and is clearly building a case. Ive said he can of course have more time but that i don't want it to be three consecutive nights as I don't feel its right for our child and that I think it should be a friday night twice a month. He doesn't want to lose his friday nights as he is a musician (I was a musician too before my child but have become a teacher now to pay the bills). What rights do I have. He's a real busy and I don't want to answer his emails but feel I should respond with the truth of how abusive he is etc.
Flower - 31-Dec-19 @ 11:34 AM
I need help understanding what to do my kids father (never married) moved out of state he just started actually co parenting non court order 3 yrs ago and the children are 7 and 10 years old. Since he’s moved he keeps asking me to pick up and move to his new state of residency but I refused now my kids went for Christmas break and he called and said he’s not sending them back I called my state police but they can’t do anything but I believe it’s because they’re in the other state. Now I have been co parenting with no issues even when he wasn’t there or helping with them. And for him to now decide this is tearing me up Can anybody tell me what to do? I’m going to court house first thing Monday morning but I’m still in shock that my kindness is being stepped on
Devastated Mother - 29-Dec-19 @ 7:24 AM
I feel my ex is emotional abusing my daughter. She is saying stuff like ur dad wants to get the police on me and sends me texts off my daughters phone pretending to be my daughter. I have a court order which I have my daughter 3 nights a week but I do have concerns for my daughter by the way my ex gets in her head. Should I keep my daughter???
Watson - 28-Dec-19 @ 7:18 AM
Hi, I have been split with my ex for a year and a half we have a 2 and a 4 year old together we broke up due to not getting on I had a nervous breakdown two years ago and whilst having therapy was told I was being mentally abused which I didn’t see at the time but joe I see very clearly I was, my ex is in the military and he sees the children when he has time, he doesn’t have a car he doesn’t have much money and he also doesn’t have a stable home for them to stay at when he does see them it’s stayinf at his nans or at a military base, he isn’t being amicable with me his very abusisive with his words and then makes me angry and then he will turn it back on me, he can not look me in the face when he drops them or picks them up or if I take them to him, he tells me to move on and that he has met someone else (which I can not see) but then makes me feel like I’m doing something wrong and doubt myself, do I need to take Him to court? What rights do I have or him? He will not do mediation thanks
Emesmith - 26-Dec-19 @ 5:19 PM
Does my ex have the right to tell me that he doesn't want his daughter seeing her friend. I am friends with the child's parents but the ex doesn't like us spending lots of time with them. And this now caused a discussion between us all. But he has told me not to take our daughter to the friends house until this is resolved....!?
Floro - 11-Nov-19 @ 2:11 PM
Hello My child live with his mum and has lewtning difficulties and speech problems. I am growing concerned that he is not progressing snd his mum isnt spending enough tine with hin to help him. He spends a lot of time at his nans. I spend majority of weekends with him but i think he will benefit living with me. I love with my partner, second child and my partners chils who my sons gets on with very well. She also without knowing helps my son with his speech and learning and every week we do honework together which he loves and learns from. We also havr a set routain which he addapts to reallu well where at his mums he doesnt serm to have one. He comes to me looking like a mess on many occasions and has sometimes come with no underwear on. Has anyone got any advice?
Jgord - 15-Oct-19 @ 12:56 PM
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