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

By: Elizabeth Mugan BA/BSc, PGDipLaw, BVC, CIArb - Updated: 20 Sep 2017 |
 
Child Divorce Relationship Amicable Grow

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]
My daughters father hasn't seen her for twelve and a half years she will be 13 next week can my partner adopt her as he's been he dad since my daughter was 5 months old do we need my daughters fathers permission
Mills - 20-Sep-17 @ 5:15 PM
Hi my ex has contacted me after 13 years of no contact with my son he is demanding to see him. In a threatening way towards me he has 4 other children that I know off he's not allowed to see them but which is apparently a social services order because of drugs mainly, he's violent hes been I jail loads of times. He doesn't know where abouts I live but I think he knows which town I live in. I'm so scared he once had contact in a contact centre but he gave that up after his first visit he also has said to me to pick up my f' ing kid or he will put him in care. He can send messages to me threatening all the time I never hear nothing at Xmas or his birthday. What can I do? I'm worried
Loopy looo - 19-Sep-17 @ 11:24 PM
My ex partner of 3 years has taken our 2 year old and is point blank refusing to bring her back to me (her mum) and two sibiling where her bed and clothes are he is on the birth certificate also. Just wondered where I stand as in a single mum on benifits and don't have the 300 court cost as legal aid isn't an option any more
Demi - 19-Sep-17 @ 11:15 PM
Leanne - Your Question:
Please help me. I am going through a divorce and we have a nearly 2 year old. Currently her dad sees her every other weekend Saturday and Sunday 9am to 6pm on both days and claims he is living with his Mum. I have said every other weekend is not good enough as not seeing your daughter for a whole two weeks is not acceptable and have suggested he sees her every Saturday or Sunday to suit himself. He has refused this and won't do it. He blames he is working overtime but I know he is lying. He lies to me about everything he is a pathological lier and this was one of the reasons for our marriage breakdown. His lies are still destroying my life, I can't trust him with our daughter I don't know where he's taking her. What opinion do you think the courts would have on this. Mediation wouldn't work as he's adamant he won't see her every week.

Our Response:
The courts are unlikely to force an unwilling parent to see their child as it would not be considered to be in the child's best interests. As a rule, the standard access arrangement is deemed to be every other weekend and one night in the week. If you can suggest mediation in a bid to come to some sort of voluntary agreement, then this may work better for you both. Mediation takes place in front of a neutral third party. The mediator has no pre-conceptions and will not force you to make an agreement. They will assist the two parties in taking turns in the conversation, and helping you reach a decision that you are both ready to agree with. But there has to be compromise on both sides and couples have to come to mediation with an open mind and be willing to discuss things in order to reach a mutual resolution that first and foremost benefits your child.
ChildSupportLaws - 19-Sep-17 @ 10:22 AM
Please help me. I am going through a divorce and we have a nearly 2 year old. Currently her dad sees her every other weekend Saturday and Sunday 9am to 6pm on both days and claims he is living with his Mum. I have said every other weekend is not good enough as not seeing your daughter for a whole two weeks is not acceptable and have suggested he sees her every Saturday or Sunday to suit himself. He has refused this and won't do it . He blames he is working overtime but I know he is lying. He lies to me about everything he is a pathological lier and this was one of the reasons for our marriage breakdown . His lies are still destroying my life, I can't trust him with our daughter I don't know where he's taking her . What opinion do you think the courts would have on this. Mediation wouldn't work as he's adamant he won't see her every week.
Leanne - 18-Sep-17 @ 2:01 AM
SJH- Your Question:
My ex is in the RAF. Our usual arrangement is alternate weekends and half school holidays. He goes away with work for 12 weeks each year and expects me to have the children when they are due to be with him without any alternative childcare arrangements being put in place. He also doesn't increase his maintenance over this period to cover additional costs for childcare, days out, food etc. Can I insist he organises alternative care and/or payments?Thanks

Our Response:
Child maintenance is based on his earnings across the year and worked out as an average. Therefore, unless your ex voluntarily offers more money, there is little you can do.
ChildSupportLaws - 15-Sep-17 @ 2:57 PM
Suzie - Your Question:
Hi.My son hasn't seen his biological father in 5 years, and doesn't want to either. Is there anyway that I can get sole custody of my son without having to go through all the drama with his father.My son feels scared of him, and I'm trying my hardest to do as my son wishesThanks

Our Response:
You already have residency of your son, especially if your ex has not seen your son in five years. Your ex would have to apply to court if you refuse to give him access and your son does not wish to see him ( you don't say how old your son is). However, the courts will only remove parental responsibilty from the non-resident parent where absolutely necessary.
ChildSupportLaws - 12-Sep-17 @ 4:07 PM
Jade Manuel - Your Question:
I've recently serparated from my ex partner. Never married. We have a little girl that is one. I have proposed that we have set alternate weekends and then week days I will be flexible, and any evenings he wants her, then he can. Is this a reasonable request? And I've said if he wants to see her at any point then to text me and he can pop over and see her. He's saying this is unreasonable. But I have always taken care of her whilst he's been away working and has never financially contributed towards her. I've done everything for myself with my daughter. Just curious on opinions. He has a very busy job at all hours.

Our Response:
The issue is not what is considered reasonable or not, much depends upon the mutual negotiation between you and your ex. If your ex does not feel the arrangement is fair, then he can request you attend mediation in order to try to resolve the issues between you. If you cannot agree via mediation, he would have the option to apply to court. As in all cases, the court’s main concern is the welfare of the child in question. The court will always put the child’s best interests first and this main issue will determine the outcome of any application for an order. However, one of the standard arrangements set by courts is, as you say, alternate weekends and one or two nights in the week. Therefore, your proposal is not unreasonable.
ChildSupportLaws - 12-Sep-17 @ 2:11 PM
Mags - Your Question:
I'm considering moving to Newcastle from Manchester with my two children. The youngest is 6 and I have joint PR with my now ex-husband.His current visitation is split over weekends and weekdays, based on his work rota. Obviously me moving will affect this as he will no longer be able to have her on the weekdays.I believe he would try and stop the move at any cost but this move is something I have been looking into for a year, as the house is up for sale I cannot afford to live in Manchester for rented anymore and my support system is up there.Can anyone advise?

Our Response:
If you plan on moving out of the area and your ex has parental responsibility and shared-care of your children, then by law you would need to request his consent. If, your ex refuses consent and you cannot negotiate an alternative arrangement then to save your ex bringing you to court you personally would have to apply to court to request permission to move. The court will then decide upon what it thinks is in the best interests of your children regarding where they should live. If you can justify your need to move with the children, the court will take this into consideration. However, if your ex can justify why he thinks the children should stay in the locality, the court will also consider this.
ChildSupportLaws - 12-Sep-17 @ 2:02 PM
Hi. My son hasn't seen his biological father in 5 years, and doesn't want to either. Is there anyway that I can get sole custody of my son without having to go through all the drama with his father. My son feels scared of him, and I'm trying my hardest to do as my son wishes Thanks
Suzie - 12-Sep-17 @ 8:31 AM
Hithe farther of my child was on the birth certificate but was onlyaround the a few weeks. Hedidn't see our child againfor 4 years and then it will only on and off for a cuppa of months. When our child was 5year oldhe started to see her again .but I got a court order stoppinghim from comeinganywhere nearme for 12 monthsbecause of his violence towards me . And in that time he could of seen our child with a third person there but he refused to do that . after the court order was up he has been demanding to see our child and threatening to take her when she is at school. I haven't see he can't see her just that it should be at a contact centre. please what can I do to protect my daughter. What rightdo her farther have to take her
Tess - 12-Sep-17 @ 12:10 AM
I've recently serparated from my ex partner. Never married. We have a little girl that is one. I have proposed that we have set alternate weekends and then week days I will be flexible, and any evenings he wants her, then he can. Is this a reasonable request? And I've said if he wants to see her at any point then to text me and he can pop over and see her. He's saying this is unreasonable. But I have always taken care of her whilst he's been away working and has never financially contributed towards her. I've done everything for myself with my daughter. Just curious on opinions. He has a very busy job at all hours.
Jade Manuel - 11-Sep-17 @ 3:49 PM
I'm considering moving to Newcastle from Manchester with my two children.The youngest is 6 and I have joint PR with my now ex-husband. His current visitation is split over weekends and weekdays, based on his work rota.Obviously me moving will affect this as he will no longer be able to have her on the weekdays. I believe he would try and stop the move at any cost but this move is something I have been looking into for a year, as the house is up for sale I cannot afford to live in Manchester for rented anymore and my support system is up there. Can anyone advise?
Mags - 11-Sep-17 @ 2:33 PM
My ex is in the RAF. Our usual arrangement is alternate weekends and half school holidays. He goes away with work for 12 weeks each year and expects me to have the children when they are due to be with him without any alternative childcare arrangements being put in place. He also doesn't increase his maintenance over this period to cover additional costs for childcare, days out, food etc. Can I insist he organises alternative care and/or payments? Thanks
SJH - 8-Sep-17 @ 4:20 PM
Stelldob - Your Question:
Pls my husbands ex has refuse to do paternity test to prove that the child is my husbands. She keeps asking for money but still doesn't want to do paternity test what should we do. We need advice please

Our Response:
Your husband would have to refer the matter to court and the court can order his ex to have the test done. A solicitor's letter might do the trick.
ChildSupportLaws - 7-Sep-17 @ 2:30 PM
Kyle - Your Question:
Hi ive been havin my daughter stay over now for year and ove the last 8 months she has been coming to mine smelling of stale wee ive addressed the matter to her mother but noting is being done social worker is no good ether could I get done if I refused to send her bk home next time I have her and then take it to court im goin out my mind with stress any advice on the matter would be aprciated

Our Response:
If you decide to keep your child against the wishes of your child's mother and you have parental responsibility then the police cannot intervene and take your child back to the mother that is the remit of the courts. However, this is never a good idea as it can backfire. The fact your child comes to you smelling of urine, may be more of a problem with your child wetting herself rather than any child neglect. If you fear your child is being neglected please see link here . You can speak to the NSPCC for further advice .You may also wish to seek some legal advice before you make any decisions regarding this matter.
ChildSupportLaws - 7-Sep-17 @ 12:38 PM
Hi ive been havin my daughter stay over now for year and ove the last 8 months she has been coming to mine smelling of stale wee ive addressed the matter to her mother but noting is being done social worker is no good ether could i get done if i refused to send her bk home next time i have her and then take it to court im goin out my mind with stress any advice on the matter would be aprciated
Kyle - 6-Sep-17 @ 8:13 PM
Can my ex get our child to do extreme sports without my permission?
Booboo - 6-Sep-17 @ 8:40 AM
The cheek - Your Question:
My ex girlfriend will only let me See my child when it suits her hours of work. Im up at 3 every morning for work so I have a split sleep pattern. She wants me to have my child when I get back from work till she finishes work and only then. Am I in the wrong or selfish to say no and that I want set days and times?

Our Response:
If you feel the current arrangement is not working and you cannot resolve the issues between you, you should suggest mediation to your ex as a way of trying to come to a mutual and set arrangement.
ChildSupportLaws - 5-Sep-17 @ 12:19 PM
Pls my husbands ex has refuse to do paternity test to prove that the child is my husbands. She keeps asking for money but still doesn't want to do paternity test what should we do. We need advice please
Stelldob - 5-Sep-17 @ 11:58 AM
My ex girlfriend will only let me See my child when it suits her hours of work. Im up at 3 every morning for work so I have a split sleep pattern. She wants me to have my child when I get back from work till she finishes work and only then. Am I in the wrong or selfish to say no and that I want set days and times?
The cheek - 4-Sep-17 @ 8:06 PM
Dash - Your Question:
Same sex marriage adopted 2 children. Have recently split now my ex is telling me she can take my name of adoption is this correct. All I want to do is see my children.

Our Response:
No, your ex would have to apply to court if she wished for any changes to be made. If you wish to see your children, you would have to suggest mediation and if your ex will not agree take the matter to court. If you are the registered parent and have parental responsibility of the children, then your ex can not take away your responsibility without the court's authority and she would need a very good reason for the court to allow this.
ChildSupportLaws - 4-Sep-17 @ 12:59 PM
Same sex marriage adopted 2 children. Have recently split now my ex is telling me she can take my name of adoptionis this correct. All I want to do is see my children.
Dash - 2-Sep-17 @ 2:46 PM
I let my ex see our son on a Wednesday for tea and over night Friday to Sunday. He is now saying he is taking me to see a solicitor as he has said he only wants him every fortnight cause he needs a break. Just wanted to see if anybody could give me a little advice as to where I stand with this.. Thank You
DanniH - 1-Sep-17 @ 7:49 PM
Sam - Your Question:
My partner has 2 young children with a previous partner. She hasn't allowed him access for the last 2 years to see them. He pays maintenance as he should. He has now recently found out that she has moved with the children so now has no idea where they are living. What can he do about this and what are his rights.

Our Response:
Your partner can apply to court for a C100 contact order. If he has no idea where is children are living, then he can also fill in a C4 form which is an application for an order for disclosure of a child’s whereabouts. This means the courts can put a trace on his children in order for your partner to be able to bring the matter to court to apply for access.
ChildSupportLaws - 31-Aug-17 @ 11:20 AM
Dandan- Your Question:
Hi, I have been 4 children and I have been in an abusive relationship for 7 years, it has been physical, mental and emotional and I want out. I do not want my children around him as every beating has been in front of the kids they have seen it all but he does not seem to care about that but will make things very hard if I choose to do this, I have no family or friends to help me.

Our Response:
I am sorry to hear this. You would be best advised to talk to someone, please see Woman's Aid link here. The 24hr freephone National Domestic Violence Helpline (run in partnership between Women’s Aid and Refuge) is available 24 hours a day, 7 days a week. It is answered by fully trained female helpline support workers and volunteers who will answer your call in confidence. Please also see the Refuge link here for more practical-based information. We hope this helps.
ChildSupportLaws - 31-Aug-17 @ 9:47 AM
Hi, I have been 4 children and I have been in an abusive relationship for 7 years, it has been physical, mental and emotional and I want out. I do not want my children around him as every beating has been in front of the kids they have seen it all but he does not seem to care about that but will make things very hard if I choose to do this, I have no family or friends to help me.
Dandan - 30-Aug-17 @ 4:49 AM
Chris - Your Question:
My partner and I are not married , we have been together for 10 years and we have 3 children aged 4,5 and 6 , I am on all 3 birth certificates , we have recently split up, their mother has a drink problem and I'd almost go as far as saying that she is an alcoholic , she suffers from Bipola disorder and uses wine as a way of helping that , she drinks herself unconscious at least twice a week with light candles in the house (because they smell nice) , my ex partners her mother has offered to take the children and I to live with her as we all as a family believe that the children are not safe in her care , my ideal plan would be to simply drive the children to my ex partners mothers home 200miles away and enrole them in a new school and we all live there , what are my rights to be able to simply take the children from their mother and what if anything could she do about it ? I would be taking them from Wales to Scotland and our children have a very good relationship with their grandmother , thank you

Our Response:
If you decide to keep your children and you have Parental Responsibility then the police cannot intervene to take the children off you and give them to the other parent; the police cannot choose between parents, that is the remit of the courts. However, it is never a good idea to take your children without consent as it can backfire. Mutual negotiation is always best and where no agreement can be made request your ex attends mediation to try to resolve these issues. I also suggest you seek legal advice before contemplating taking your children without consent. If you are concerned about a real and immediate threat to your children's safety, speak to social services first.
ChildSupportLaws - 29-Aug-17 @ 4:02 PM
My partner has 2 young children with a previous partner. She hasn't allowed him access for the last 2 years to see them. He pays maintenance as he should. He has now recently found out that she has moved with the children so now has no idea where they are living. What can he do about this and what are his rights.
Sam - 29-Aug-17 @ 12:36 PM
Hi I been separatedoing with my husband for a year 5 mounts ago he did not had nothere to go so I let him stay at myour house agreed to look after them while I was at work I was keeping him he had no income 5 months later I found someone went on a date I knew it for a while my ex got very jealous and had a huge row I endup telling him to leave my home now he is threatening me that he will take kids away and don't want my new boyfriendaround the kids he said he wants fool car checharger on him before he enters my house or he will take kids away from me kids are save they not in danger and I look after them kids dad no longer lives with me and don'thave his place
Aiste - 28-Aug-17 @ 1:29 PM
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