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

Author: Elizabeth Mugan BA/BSc, PGDipLaw, BVC, CIArb - Updated: 7 April 2014 |
 
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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Does my ex husband have automatic contact rights he shows very little interest in their lifes it is me who has to contact him over the children
booboo - 5-Feb-14 @ 12:14 AM
My son inlaw has another child by someone else he pays csa for him,he has just found out the the mother of the child has changed his surname by depole to her new partners name.He is confussed and wants to know if he still has to pay csa for his child.I must add he has never had contact with the child.please can someone answer my question thankyou
twiggy - 9-Jan-14 @ 8:10 PM
I split up from my partner nearly 3 years ago. I have never stopped him from seeing our child and never asked him for money to support our child. We both have new partners, I am extremely happy with my partner and he has his own business and supports me and my child with everything we could ever wish for but my ex now has a new partner who has 4 children and they are asking me for money to enable them to see our daughter. I have helped out in the past with small amounts of money which I know is wrong but now it's starting to turn nasty as they expect me to pay the travel fairs for him to come an collect our daughter and I am being threatend with solicitors and child protection towards my child. My child lives with me and has her own bedroom is clean an well looked after she is a happy healthy and extremely cleaver little girl. But my daughter has mentioned on more than one occasion that when she stays with her dad she has to sleep on the floor does not have a healthily diet when she is with him. She seems very unhappy when she has to go to her dads for the weekend and I am not happy with the words that he says to her for instance "why don't you tell mummy that you want to come and live with me!" She loves her dad but I find that all of these words are going to damage her. Am I wrong for seeking legal advice on these matters? I don't want anything from him just that he still has involvement with her an stops harassing and treating me.
Lesley - 3-Nov-13 @ 10:44 PM
i was with my x parner she left me when pregnant then when she surfaced when the child was 8 month old like a fool i took her back looked after both of them become a dad paying for every thing then as i thought things were normal i put my name on the certificate 3 weeks later she leaves and puts in for csa now after 2000 pounds of solicitors fees she would not do a paternaty test now she has totally left the area no idea were she is but guess what i still have to pay for somthing that im sure aint mine and ive ran out of money to take her to court
fez - 11-Sep-13 @ 12:34 PM
Hi my story is to say the least shocking. I had been married to my separated wife for 13yrs, last year at about this time (September) she started an affair with another man. After a few weeks she decided to move in with him and take our three children then aged 2 and 4 my daughters and my 10yr old son, I was not sure of my rights but had half custody of all three. From the start there were problems especially with my children's mental health, "it was later found out he had been the case of a social service report regarding his own children", after a couple of months she left him and I took full charge of our children, she re-housed herself in a three bedroomed house but the children stayed with me and have been since November last year, she has tried to have the children for a couple of nights but it didn't work out, mainly due to the fact she was unable to cope with them. Now the benefits we were entitled to are still payed to my wife and she gives me some money but not all of it, lately I've been asking her for more but she says she gives me everythingI'm due. Just recently she has demanded that our two girls stay with her and my son stays with me. Anyone know of any agencies or help lines I can contact for assistance?
solo dad - 19-Aug-13 @ 4:26 PM
My partner left me when my daughter was 5 months old and I was 8 weeks pregnant with his second child for an older woman he started seeing before my daughter was born, he is named on my daughter birth certificate and want to be at the birth and named on his sons birth certificate when he is born in 6 weeks time.What rights does he have?Do I have to let him take my daughter to this woman's house? I think she'll get confused as she is only 9 1/2 months old now and I don't want her thinking she's her mother, also her dad hasn't really been there, he may come and see her once a week if we're lucky.Please help, any advise welcome
Robsmummy - 6-Aug-13 @ 11:04 AM
As a female I am quite shocked & disgusted reading this that it is all written in women's favour. Children should be placed with the person most able to care for them & unfortunately this is not always the mother I think this website needs some drastic updating.
brackster - 16-Jul-13 @ 3:51 PM
I find the wording of this incredibly sexist, I'm a 23 year old father with full custody of my 3 year old daughter. I find it ridiculous that in 2013 the wording of this piece is massively biased towards mothers trying to protect their child from being taken by the father. My situation is opposite, yet this piece repeatedly makes reference to a mothers rights regarding custody, and fathers 'taking' their children. As my daughters full time carer I've arranged agreed access with my ex, to read this piece literally I have no idea what my rights are if my childs mother decides not to return my daughter after visiting. Please clarify if this is intentional as there is a legal difference or if it is simple closed minded sexism.
Sam_Rowland - 30-Jun-13 @ 10:39 PM
I am 17 years of age and study child care at college .I have left home and living with my friends family.the question I would like answering is can they claim family allowance for me or can I claim anything to help towards my keep.My mother says she as cancelled my family allowance but I am not sure knowing her. my mother also receives maintenanceCAR for me
peggy - 31-Mar-13 @ 3:56 PM
My daughter has an 11month olds boy and the farther is on the birth certificate however He physically abused her and smashed the house up and only served a few months for this. .. He also has history of threatening behaviour and also assaulting his mother and brother. . My daughter is worried that he may be allowed access to his son . . . .surely this cannot be right with his history .. His family dont bother with cards,presents phone calls when baby was born more for his first Christmas !!!!!!!!!!
Nell - 25-Mar-13 @ 3:54 PM
I quote you:Unfortunately in some circumstances, a father may take your childNot in the least biased then?God forbid the mother takes our child away from me? :)Just a thought: the rest isn't too bad. But do we really need the bias?
chris - 13-Feb-13 @ 8:06 PM
I must say as a father who loves his son and has spent two years trying to gain equal access, that when reading your information, the intimation is,it would appear,that it is the father who has to be watched out for,that it is the father that is likely to snatch the child and that it is the father who is the root cause of many of the problems.Having seen my ex partner lie in court, make false allegations against myself and refuse to hand over my sons passport to me, so we can also have a holiday...I could go on...I would ask that you consider a more unbiased approach when giving information, as it is this outdated attitude that helps to maintain the inequality against fathers and our rights to be considered just as important to our childrens upbringing and welfare as mothers.
gentk - 4-Feb-13 @ 6:06 PM
see me and my my sons mum split up 2 weeks after finding out that she was pregnant. Ever ssince she has planned eeverything out to try making sure that i cant see my son by not telling me any appointments forr the baby scan scans, when he was born or anything till after it's already happened and too late to do anything about it it which i think is pathetic and childish in all honesty. So i want to be in my sons life and be the respectful role model that he needs me to be and i can also help out which iam doingh except i have to keep lying where the presents and money actually comes from and it's so unfair that woman get all these rights that us men who are wanting to do what they can to ensure that thee child/children get what they need and not have to worry about those woman who just want to be spiteful and self centered rather then having a childs real father in the childs life. what can i do so i can actually get the access from the courts and stuff, how do i go about it all?
matt or Paulo - 22-Dec-12 @ 6:44 PM
hi been on csa calculator and for one child the differance is over 20 pounds aweek rang csa they told me that i was paying the old rates and would be till the child left shcool.the ones on website were the new rates and nothing could be done is that true
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corey - 10-Nov-12 @ 10:45 PM
can a father stop his mother takeing grandchilden on holiday abroad even if the mother has said they can do the couple are no longer together and he doesnt support them
piggy - 1-Nov-12 @ 6:23 PM
I am a worried nanna!My youngest daughter is in an "abusive" relationship that sometimes becomes violent. She is struggling to find the courage to escape with her children. Her oldest child is 5 yrs old and from a previous relationship. However, she has a 10 month old daughter with her abusive partner and each time she attempts to leave him, he threatens her regarding their daughter saying she can leave with her son but the baby stays with him!!! I have organised for her to go to a women's refuge on two occasions recently, but she will not go anywhere with out BOTH her children. Her partner is a cannabis smoker and often their clashes are started when she asks him not to smoke in the home with the children there. I have read so much advice (often contradictory), that I am now confused. How can I help my daughter and grandchildren escape to a better life, without breaking the law???
Crayon - 31-Oct-12 @ 9:16 PM
Me and my boyfriend broke up in beginning of Desember 2 weeks after we have broken up I found out I was 8 weeks pregnant, but he already had another girlfriend, we were together for 5 years. i went through my whole pregnancy alone without him, during my pregnancy he kept on telling every one that he is not the father of my child, after the birth of our son, he wanted DNA tests and i agreed, the tests shown positive. our son is 2 months old, and he demands to have the child for the whole day and a whole weekend. I didn`t register him as the father, because he wasn`t there when our son was born. What can I do?. Does he have any rights to stand on, because he wants to take me to court? Please help.
Pinkie - 28-Sep-12 @ 8:12 PM
I hope someone can help please. I have two children, !0 and 15. Sinse Feb 2011 I have had shared custody with their father (both children wanted this arrangement) We had a court order stating that my ex husband (my childrens father) was not allowed to bring the two children into contact with his partner of two years because he refused for me to meet her. I only wanted to meet his partner to build trust so I knew who the person was involved with my children. I felt he had something to hide by not allowing me to meet her so it was mentioned in court. The judge ordered a police safe guarding check to be carried out on her but she declined to sign giving consent for records to be checked (clearly didnt want anything coming out of the woodwork) Because she didnt comply with the court, they persumed the worst and stated in the order that she is not allowed to come into contact with the children unless I have had a face to face meeting with her and given them both written consent to say Im happy for my children to be around the mystery woman. 2 months ago my ex husband said he wants to move in with his partner and asked if I would like to have full custody of the children WOO HOO!!! HELL YEAH!!!!!!!! No hesitation I said yes!!!!! (I have been fighting for them for a long time, hes a bully, controling, and vindictive and intimidating and very bitter, and will hurt me through the children) He knows he couldnt take the children with him because of the court order so allowing me full custody was his only option really. I have sinse discovered that the reason his partner wouldnt have the police check done was because she has convictions for drugs, this alarms me a lot as I have no choice but to let the children visit him at weekends and of course she is there. But if I didnt allow they wouldnt see their dad. They have been in my full custody now for 5 weeks (and its amazing!!! they are back where they belong, safe and sound with their mum) but my worry is, I feel he should be paying maintenence, he has no mortgage with his partner, no rent, she owns the house, just a few bills, they both work and I am on the bones of my you know what, trying so hard with my work, the house and everything. I am so scared that if I mention money or contact the CSA he will attempt to take my babies back from me. Thats the way he is, he would rather hurt his children and them away from their mum (he did it before just to hurt me, not thinking of them) knowing they are settleld with me, rather than part with money. Could he take them back? Sorry for the novel! mumsie
mumsie - 28-Sep-12 @ 7:41 PM
Hello, Every time I do research on this topic, websites are contradicting each other so I really hope you could shed some light on this. My partner has his 15 year old daughter living with him after having lived with her mother for 12 years. All those years, my partner paid his ex wife child support. Now that she lives here, we are wondering if his ex wife owes him child support and if the family allowance she is still claiming should actually go to him. If so, how do we claim for this? Thank you for your time and thank you in advance for your response.
CJ85 - 24-Sep-12 @ 4:06 PM
Hi my son is 2 he usually stops his dads every saturday but keeps comin home ill. iv had to take him docs and hospital past few week. n never seems right in himself. can i stop him from going? please help
missy12 - 24-Sep-12 @ 2:04 PM
Mother and father separated.Have one daughter with Downs Syndrome, presently aged 12.Contact order in place - father sees her every other weekend and after school once a week.Relationship between parents not a good one and mother feels bullied and intimidated. What will happen when the child reaches the age of 18?Will the mother be at liberty to live wherever she chooses without having to tell the father?Presumably when a child reaches the age of 18 they normally make their own choices as to whether they continue their relationship with the absent parent but what happens if that child has special needs?
Tiankerbell - 19-Sep-12 @ 2:01 PM
Hi. I recently stopped my ex from having contact with my 20month old son due to him refusing to bring him back when he was poorly. He had been having our son every other Saturday for 6 hours but each time, he came back poorly. He doesn't have PR and is not registered on the birth cert but is paying maintenance. I have now received a letter from his solicitor stating that he wants to be included on the certificate and gain PR. He has also lied by saying our son has stayed overnight and has been over every week for tea!!! He was emotionally abusive to me throughout my pregnancy so I left him before our son was born. I spent 10 months with my parents before going back to him on a trial basis as he told me he had changed. I left 4 months later. Does anyone know if he will be granted PR and access? Worried that he will take our son and not return him to me and I'm also worried for the welfare of our son too! Please help
Proudmum - 18-Sep-12 @ 7:10 PM
my x takes my daughter once a fortnight to his house but wont tell me where he lives do i have rights to know where he is taking my children, also does he have to have a bed for her, as she is sleeping in his bed over the whole weekend and i don't think that's right. i have a restraining order on his as a previous domestic abuse in the past when we were together, so i cant even check his house myself so how do i get to go check that he gets a bed for her? we have a solicitors letter written up with arrangements as he kept messing them up before and its hard without it as im not allowed any contact with him.
shaz - 13-Sep-12 @ 8:42 PM
my x takes my kidsonce a fortnight to his house but wont tell me where he lives do i have rights to know where he is taking my children
buddy - 12-Sep-12 @ 4:07 PM
my ex husband has not got a bed for my son as he gave his bedroom to a lodger. when my son sleeps he has to sleep on the floor in his sisters room or the sofa , is this acceptable or should he have a bed to sleep in .
jo - 10-Sep-12 @ 10:47 AM
I have a 10 year old son and I am divorced from his father. His father is a Narcissist and is Bipolar. He was diagnosed a couple of years ago but doesnt take the medication he is supposed to. I remarried a few months ago and he is causing so many problems since then and I feel is jealous of the life we provide for my son and the relationship that my husband has with my son. My son has not been going to see his father for over a year. Mostly because his father never called to see him but then the last time he was there overnight, my son told me they slept in a car so after that, I refused to allow him to have overnights unless he could prove that where he was staying was HIS place and he refused. Now that he is paying child support (almost 32k behind) he suddenly started forcing the issue of him seeing my son and threatened to take me to court AND my son wanted to go so I let him go stay with his father for 6 weeks over the summer break. My ex lives with his girlfriend, her son and her son's grandparents (on his fathers side.. I know confusing)... Anyway, they did nothing over these six weeks except take my son's cell phone that I got him after the whole sleeping in the car thing and told me and my son that he could not talk to me. When my son came back home he was traumatized to sleep in his own bed (which he has slept in since the day he was born) and afraid to go to bed because of a movie that my ex let him watch about a 10 year old boy that kills his entire family, told him it was based on a true story which it was NOT and now my son thinks that this could happen to him because he is 10.... What type of father does that? Is there anything that I can do? My son is now in counseling to help him work through this and to find out if anything more went on over there. I dont want to let him go back over there! Please help!
Patti - 7-Sep-12 @ 6:43 PM
do i need to inform my daughters father that im going on holiday for two weeks if his name is on the birth certificate, however he hasnt paid a penny towards her since we split,and hasnt seen her in over 3 months.i know the rules if there is a resident order which means i can take her on holiday for up to a month (28days) without consent, however there is no residence order, can i still take her without his consent??? please someone help its so confusing
confusedwoman - 2-Sep-12 @ 12:33 PM
Hi, My daughters mother left us when my daughter was 2 years old. (she's now 6 nearly 7) I'm in the RAF and have raised her with no financial support from the mother since the day she left. At first contact was every couple of weeks but this has gradually reduced over time. She has not seen her daughter since Dec 2010 when she came up and had her for a couple of days. Phone calls are very sporadic and when she failed to see her in Apr 12 as promised to her daughter I decided to not answer her phone calls. It took about 2 unanswered calls for her to stop trying, she's made no other attempt in that time to make contact. The mother is not working has had (still?) contact with drugs, alcohol dodgy people, I don't even know where/who's she living with. Tonight out of the blue she phones my house phone at 2300 and threatens to take me to court to have her daughter (citing that she won't have to pay and I'll have to pay a fortune, this is the kind of mentality I'm dealing with!) I know no judge would now grant her residency but contact? My daughter never speaks of her (I have not encouraged this) she is happy and settled and I don't want this mother coming in to her life and then leaving a possible car crash which no doubt she will. Where do I stand in the eyes of the law? Would she be able to get contact? would I have to drive my daughter to Norwich (we live in Whitby) as there's no way she'll have the means or finance to get up here? I guess I'm just concerned, Any advice would be helpful, Thanks, Tom
tom - 2-Sep-12 @ 12:28 AM
please help.please could someone email me some advice.ive recently split with my partner who is 8 months pregnant with my baby.shes threatening to stop me seeing the baby and says she isnt going to put my name onthe birth certicate.can she do this? is it legal? i dont want to leave the baby in her care as she has a history of drugs.she has two kids from a previous relationship who both livewith there father.she had a daughter who she gave up for adoption 15yrs ago.and another 5 yr ago.can anyone tell me what i should do and if i would have a strongg case for appying for sole custody.this is my 1st child and i cant sit back and watch this happen.please help
davie - 2-Sep-12 @ 12:25 AM
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