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

Author: Elizabeth Mugan BA/BSc, PGDipLaw, BVC, CIArb - Updated: 23 July 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]
Hi me and my husband have been split up for nearly a year now, he has always had our 2 kids every other weekend and 1 day in the week, he has spent the last 5 weeks refusing to have the kids and now states he will only have them 1 night every other weekend and won't be having them in the week either. I don't know what to do so I work 50+ hours a week and have no time to go and see someone. He has also dropped my child maintenance to 50 a week yet he is earning 170 a day and because he is self employed the CSA cant make him pay me. Please help me.
rach - 23-Jul-15 @ 8:31 PM
My ex had the kids for a wknd and has refused to return them he will no negotiate, I have been to police and they cant do anything because he has pr what is my best option?? Thansk in advance
Anto - 21-Jul-15 @ 9:42 PM
I have recently changed my girls school over due to moving house. The school application required me to fill information about there father. I explained to the school I don't have any information of his where abouts due to him being under an harassment warning and we only communicate through solicitors. I have since found out he has been to speak to the headteacher and that he has been informed of when there sports day is as well as there reports. My question is I was told by the headteacher of there previous school they could not withhold information about my eldest as his information was on the application. I didn't put his information on the youngest child's application and he wasn't aloud to pick her up or gave any information on her. My question is how can the headteacher give information to there father when he has been issued with a harassment warning (school have proof of this) and his information was not put on the school application?
Susan - 20-Jul-15 @ 2:24 AM
Hi help needed. Hopefully get an answer this time. I have 2 children (3 and 5) with my partner, she wants her grown up (21) son to move in with us but I refuse due to his drinking and past violent behaviour and lack of respect for anyone around him. My partner says she is applying for a council house and taking out children with her so that he is guaranteed a place to live. He was recently released from prison for assault. Can I stop her from taking the children with her? I have PR but have been told I need to go to court to activate them. Is this right??
Rubytuesday - 16-Jul-15 @ 10:15 AM
Can mother give permission for her 11 year old daughter to go on holiday abroad with her friend & her family withoutfathers consent. He does not have PR.
199 - 16-Jul-15 @ 9:28 AM
I have an informal agreement with my ex that he would pick my son up from preschool Monday lunch and have him until weds pm. When I would then collect him after work.This was an ideal arrangement as I work part time Mon to weds and at home on Thursdays.however he has let me down at short notice in the past by taking a holiday and leaving me without childcare.he has now said a few days before the school holidays he will only have him on Tuesday and weds for a full day. . .this, means I now need to find childcare at short notice for the school holidays ,costing me extra money when he is, perfectly capable of looking after him around the Times I work. (He does not work himself), when most father's are fighting for access I seem to be fighting for my ex to see his son.there is no sense of commitment or responsibility, I cannot force him to see his son but why do I have to just put up with his arrangements when I'm the one with commitments.I have had no settlement or receive any maintenance from him. He has Parental responsibility, lives in n expensive house but seems unwilling to look for work as I have to to provide for my son. We were not married and the house was in hissolename.Do I have any legal backup to . Make my ex step up and take childcare responsibilities when I cannot.(I have no . Others to help)can I make a claim for maintenance based on the fact he refuses to work, any other legal claims
wills - 15-Jul-15 @ 11:08 PM
my ex is a complete liar he denies everything when our daughter is at risk I have stopped contract with him seeing his daughter coz he lied at mediation saying that our daughter isn't at risk when with him I don't want my daughter growing up with a lying dad am I right
muppet - 14-Jul-15 @ 8:24 PM
Basically my ex threatened to take my daughter out the country, told me if didn't need her passport and I wouldn't find her, sense this comment he's always had to hand over he's passport and ID card as he's Portuguese! He told me in April he was getting a British passport then when I told him he I need he's new passport, he turn said he's not allowed a British one and he never said that! The fact that he's lied make me not trust him more! Can I stop him taking my daughter or find out if he has a passport?
Essex - 14-Jul-15 @ 1:56 PM
@Susan - natural residency of your child still usually falls to the mother. So you are allowed to leave with your child. You can negotiate access with the father either through a family-based arrangement where you decide between yourselves, or through mediation, if you can't agree, or as a last resort it can be decided through the courts.
Andy - 14-Jul-15 @ 12:01 PM
@Andy - if you have parental responsibility then as suggested in the article, the police are unlikely to interfere, if you decide keep your daughter. However, it may be more advisable to try to arrange residency through the courts if you are concerned about your ex's instability and the repercussions on your child. If you decide to keep your daughter, then your ex will be able to apply through the courts to have her returned and the courts don't take lightly to parents taking the law into their own hands (i.e keeping your daughter against the wishes/consent of your ex) unless absolutely necessary. I'm afraid it's a bit of a tricky situation that could backfire. Therefore, I suggest you take some professional legal advice in order to negotiate the best way forward. I hope this helps.
ChildSupportLaws - 14-Jul-15 @ 10:43 AM
@Sue - yes, you can stop him temporarily if there is no court order allowing him to pick her up. However, he may be able to take you to court to arrange official access, which if he was awarded, you would have to comply with.
ChildSupportLaws - 13-Jul-15 @ 2:45 PM
@Poppit - you can find out more via the Coram article here which talks about the issues surrounding prison visits and children. You could call the Offenders' Families helpline should you need any further information via the link here. I hope this helps.
ChildSupportLaws - 13-Jul-15 @ 12:53 PM
@mummy80 - he can try and stop you via a Prohibited Steps Order. A Prohibited Steps Order (PSO) is an order granted by the court in family cases which prevents either parent from carrying out certain events or making specific trips with their children without the express permission of the other parent. This is more common in cases where there is suspicion that one parent may leave the area with their children. If your ex has parental responsibility, he has a right to apply for the order if he feels that the move may not be in the best interests of your child.
ChildSupportLaws - 13-Jul-15 @ 12:18 PM
@Pew - doing something extreme such as taking the baby from the grandmother, is only going to cause consternation possibly for the child, the grandparents and the mother. It could also backfire, meaning the mother may decide to stop access altogether as your husband's actions will foster distrust. I suggest if your husband is not happy with his ex's decisions over access to his daughter that he approach it the legal way and take it to court. This way, whatever access he does have will be made official. If his ex goes against the order, then she will be in breach. However, should it go to court, it does not mean your husband will be granted access, as that will be up to the court to decide based upon the evidence given from both parties. However, it may work out better than him being constantly subjected to the controlling whims of his ex. I hope this helps.
ChildSupportLaws - 13-Jul-15 @ 11:11 AM
I have a grandson who was taken from my daughter, at 2 months. at the time both mother and father was living together. but when daughter changed her mind about getting back in a relationship, he decides to leave South Carolina while she was in class (massage Therapy) and then when she spoke with the police, west Columbia, they tells her that the father has the right to take the child. (But Richland county said that it was kidnapping) I will never be able to understand it.. all the papers and books that I have read stated that if the parents are not married in this state then the mother have sole custody until the parents go to court. why wasn't he brought up on charges of kidnapping? So the other part I can't wrap my mind around is west COLUMBIA and RICHLAND is both in SOUTH CAROLINA why aren't they under the same umbrella? As far as knowing what to do. I felt then and I still feel that my daughters rights as a mom was not taken seriously. And the for she and I to be told that if the fathers name is on the birth certificate he can take the child. is mind blowing.
DD - 11-Jul-15 @ 3:19 PM
I have a month old baby and his dad is being unbareable, we are not happy together and I don't want it to make a unhappy living environment for our son, his name is on the birth certificate and I wouldn't want him to stop seeing our son, but if we split up would I get to keep my son living with me, there are no factors such as drugs or anything that would mean I could be seen as an unfit mother! I live and breath him, and if leaving "the dad means I wouldn't be able to live with my son I wouldn't leave him,
Susan - 11-Jul-15 @ 10:54 AM
Hi my ex partner keeps running away with my daughter she suffers from depression and she keeps going from house to house with my daughter. So am I legally allowed to keep my daughter not away from her mother but with me as I think she is a threat to her welfare until we go though meediation
Andy - 11-Jul-15 @ 7:48 AM
Can your give me advice . I don't want my ex to pick our little girl up from my house can I stop him . He is on her birth certificate and we just don't see eye to eye . We have both moved on and he is plan nasty with commentshe comes out with
Sue - 10-Jul-15 @ 8:48 PM
Can your give me advice . I don't want my ex to pick our little girl up from my house can I stop him .
Me - 10-Jul-15 @ 8:45 PM
my son is in prison and his ex won't allow us or him to see his daughter. Does my son have any rights?
Poppit - 10-Jul-15 @ 3:57 PM
@Carter - I would advise that before you decide not to return your daughter, you seek some advice. Although, if you have PR, you are legally allowed to keep your daughter, it is never a good move, as it will lead to future distrust from the mother and you may be asked to return her through the courts. The courts also doesn't like it if you take the law into your own hands.I suggest you go through the correct route by applying through the courts for residency. However, if you are genuinely worried then you should take some legal advice regarding the best course of action.
Tom - 10-Jul-15 @ 2:59 PM
I am about to move 100 miles away with my son.Can my ex (who has PR) stop me?He's already lost his place as school as he has been accepted into a new school where we will be living and I believe the area we are moving to will give us both a better way of life, better schooling, jobs etc.We've never had a order in place with regards to access and he usually dictates to me when he wants to see him, if I don't then he kicks up a fuss.I have had to report him to the police a number of times due to harrassment and abuse, but I have offered that he still sees his son every other weekend and we share holidays.
mummy80 - 10-Jul-15 @ 1:51 PM
My husband has a 2 year old with an ex. However since they split at the babies birth she constantly lies about silly things( baby taking a dummy) so the baby is distressed when she comes with us. If she is working who she leaves the baby with. They agreed against vaccinations she let the baby have them. She works 2 nights consecutively night shift and looks after the baby with no sleep. We have tried speaking to her but she just lies and doesn't listen. The last straw was the baby was meant to stay with us whilst her mummy worked nightshirt. She told us she wasn't working. But then we followed her and she dropped the baby at her mums then went to work her shift. Does my husband have the right totake the baby from her grandmother. As he feels it's his responsibility not the grans. Also he wants to keep the baby full time. What's his/our rights. We also have a child together and although he works I am on maternity at the moment and will probably not be returning to work. HELP
Pew - 10-Jul-15 @ 7:59 AM
Help, I'm a father to a beautiful 2year old daughter, her mother and I recently split up, she has been bringing a drug dealer to my house (unknown until now) and doing drugs with him and also having an affair, they are both heavy cannabis users and he is also a coke user, I have told her over and over not to have him around our daughter and she won't listen he takes them on days out so even driving whilst high, I am not happy about this and I'm thinking of taking my daughter from her, I am on the birth certificate,I am also contacting social services tonight as this just isn't fair, do you have any advice? Can I keep her until she takes me to court for her? Thanks.
Carter - 9-Jul-15 @ 4:40 PM
@Green - it is hard to say whether access will be granted if he takes you back to court, as there are two sides to every story and the father may put forward a completely opposing one to yours. You don't say how old your son is, if he is over the age of 11, he can be asked for his opinion regarding whether he wishes to see his father or not. On the other hand, if your ex is threatening court, you could suggest mediation, which is explained via the link: Mediation: What is it and is it For Me? here. This way both of you will be able to have your say and you could possibly come to an informal agreement via a third party, which may help and which will also prevent it being taken back to court.
ChildSupportLaws - 9-Jul-15 @ 11:45 AM
Help! I have 2children ( 3 and 5) with my partner. She wants her grown up son(20) to move in with us but I refuse due to his drinking and past violent behaviour and lack of respect for anyone around him. My partner says she is applying for a council house and taking our children with her so that he is guaranteed a place to live. He had recently been released from prison for assault. Can I stop her from taking our children? Thank you.
Rubytuesday - 7-Jul-15 @ 10:52 PM
looking for some advice. ive got 2 kids both have diffrent fathers. my youngest will be 1 this month and he has not seen his dad for about 7 months. hes only met his dad about 7-9 times last year. his father isnt on birth certifacte. the father wasnt their during the pregnancy and he didnt meet his child until a few weeks after my son was born. during the pregnancy it came to light that he tried getting me attacked to stop my son being born. MY SON is a mummys boy and very attached to me cries when ever i go out his sight like any child he isnt keen on strangers. HIS fathers family dont take involvment the father has admited he has dna doubts which i why i think is the reasons he didnt want to arrange a date to add him to the BIRTH CERTIFICATE. he has never payed for.his child hes just out of jail last monthaswell he smoke drugs along with his family he has crimnal record aswellhes also been offerd supervised contact at my mums house hes refused twice to reply. hes also had people message me with abuse and has thrratend to kidnapp my son this year so with my son not knowing him and with the threats thats why i offerd contact at my mothers, is there anything i can do to stop him from contacting me nd my kids as absent ex taking piss out me and his own child now
ferguson22 - 6-Jul-15 @ 9:39 PM
@Leigh - if you are concerned about this you could apply for a Prohibited Steps Order through the courts. If your ex has parental responsibility, then the police would not be able to get involved if he chose not to return her and you would have to apply for the return of your child through the courts. If you wanted to pre-empt this, then a Prohibited Steps Order (PSO) is an order granted by the court in family cases which prevents either parent from carrying out certain events or making specific trips with their children without the express permission of the other parent. This is more common in cases where there is suspicion that one parent may leave the area with their children. We have all heard the stories of a parent taking their child for the weekend and not returning them and it becoming extremely difficult for the other parent to get their child back. Thankfully, this is one of the scenarios that a PSO seeks to prevent. If the order was granted through the courts, then failure to comply with this order is a criminal offence (often charged as kidnapping) and could result in a custodial sentence. I hope this helps.
ChildSupportLaws - 6-Jul-15 @ 2:15 PM
Hi, After some advice. My ex was issued a contact order back in 2010 he stuck to this 80% of the time and then 18th months later stopped contact altogether. My solicitor tried contacting him for 3/4 months but had no replies or responses to the letter. My ex partners parents have continued to have some access maybe once a month which sometimes my ex turns up to and some times doesn't bother. I have tried my best to include the grandparents as much as I can but I find the grandmother very hard to get along with and always trying to provoke an argument with me which I always bite tongue. Anyway my ex partner decided to show up at my sons football game he had sourced the information from someone. He then proceeded to cause an argument not with myself but my brother in law. My sons teammates and himself was very upset by all this and my son has since refused contact with his grandparents incase his dad goes. I requested the grandparents came to the house to talk to my son (text messages to prove this) so contact could continue but they haven't been. Two weeks ago it was my sons sports day he requested I didn't tell anyone from his paternal side as he frightened his dad would come and upset his friends so I respected his wishes. Since then I have been bullied and received text messages about taking me back to court and getting access.. I know his grandparents can't get access as such but they have informed me that the dad will go for access again. My son has not really had a relationship with his dad since he was a baby. He went a year without seeing him then In 2010 he got acess again to which he broke and hasn't really seen him since 2012 maybe 20 times max. What are the chances of access been granted? Even though my son doesn't want to go? I know he wont stick to it and its just to please his mum Any advice greatly appreciated Thanks
Green - 6-Jul-15 @ 12:25 PM
Hi, my ex husband, my daughters father can be very immature when he wants to be. He works off shore and when it comes to the school holidays he ignores contact with me and won't say when he is back. He then phones out of the blue and expects everything to be put on hold for him to have access. I have said to him before that we need to arrange contact and have told him that he can't have contact exactly when he wants as we have already made child care arrangements and plans...which results in an ear full of abuse. I am worried if he isn't happy about having to wait till say Wednesday instead of Monday he will go to the child care provider and take her. Could he take her without arranging it and without me saying yes? The contact in our divorce doesn't say anything specific and says its arranged between us so there is no set days or time. Any help is very much appreciated as I always dread the school holidays.
Leigh - 4-Jul-15 @ 12:14 AM
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