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

Author: Elizabeth Mugan BA/BSc, PGDipLaw, BVC, CIArb - Updated: 3 March 2015 |
 
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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Leave a Comment, Ask for Advice or Share Your Story...
[Add a Comment]
My daughter lives with her dad (we never married but split when she was one and lives with her dad as at the time I couldnt support her financailly) shes now 9 and been saying a lot how she is unhappy and wants to live me and my husband and her brother and sister.Every time I have tried bringing the subject up with her dad he said no she stays where she is not thinking its what she wants not what he wants and gets very upset about going back to her dad and stepmums.Its now coming down to he avoids seeing me and sending his wife to pick our daughter up from when I drop her back from her weekend over.What can I do as I hate seeing my daughter so low and upset.
munchkyne - 3-Mar-15 @ 4:42 PM
ive been paying child maintenance for the last 5 years without fail. But due to unforseen reasons I have taken total responsilty of my children now, so should my ex pay me child maintenance from now on.
stew - 2-Mar-15 @ 9:53 PM
@Youngy - you would have to get permission from your ex and if he should wish he could apply for a prohibitive steps order through the courts. As specified in the article, the court will take into consideration, 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 and your daughter is old enough to be able to have a say in this decision and her opinion will be taken seriously through the courts. I hope this helps.
ChildSupportLaws - 27-Feb-15 @ 10:21 AM
@emma - you are in a difficult position with regards trying to both get maintenance and residency as you do not have parental responsibility and/or are not the legal guardian. It sounds terrible with what you are having to put up with. Can you not apply for carers allowance? As it really sounds like you need some help. Erin.
Erin - 26-Feb-15 @ 3:08 PM
@geno - please see our partner site from Separated Dads: When Your Ex-Partner Denies You Access, link here. You would need to go through the process listed in the article. I hope this helps.
ChildSupportLaws - 26-Feb-15 @ 3:03 PM
@Pat - I'm not quite sure what you are asking here, so I would need some more information in order to answer your question properly. However, the father’s full name and occupation are required if the father’s name is on the birth certificate and usually some evidence is asked for in order to make sure the details are correct. It is an offence to give false information to the registrar.
ChildSupportLaws - 26-Feb-15 @ 10:37 AM
My daughters father (we were never married) and I separated immediately after her birth.She is almost 15 now.He has made no effort to contact her up until 6 months ago, when my daughter contacted him.My husband, who I have been married to for 11 years, along with our other two children has been and is an excellent to father to our children.My daughter calls him 'dad', has recently got a job in Dubai, and we are all wanting to move there for a couple of years.Even though my daughters biological father has never bothered to be in her life or helped maintain her, he was granted parental responsibility by the Court.Do I need his permission to take her to Dubai to live? Any advice please thankyou.
Youngy - 25-Feb-15 @ 10:46 AM
I am the new wife and have been looking after my husband 3 children 13 15 17 for more than 4 years. Not my husband or his ex wife is paying a sent towards the children, and one child is disabled and has medical bills and special needs 24/7, nobody helps me, so i have made a case at the maintenance court. Do you think something will come out of this, as I am tired of taking all the stress on myself. I am also thinking of divorcing my husband but keeping the children with me, as they want to stay with me. Any good lawyers and any ideas how to put this on the table. Not the mother or the grandmothers help with anything.
emma - 25-Feb-15 @ 8:14 AM
how can i get help with my childs mother keeping my to daugthers awax from me but still want me to help her with support but she abusing my rights to be there for my children
geno - 25-Feb-15 @ 8:09 AM
If a father puts only part of his name on a child's birth cert - ie if his name is Fred John Bloggs and he puts the name down as just Fred John on the certificate - does Fred Bloggs have PR or does the non existent Fred John have it I am thinking that as it was put that way to avoid ever having to pay CSA as the couple never lived together
Pat - 24-Feb-15 @ 9:01 AM
@lulu - I don't think on an issue like this they will take your children's opinions into consideration. But if your ex hasn't had any contact with your children out of his own volition, then the courts may be more inclined to allow you to move.
Tom - 20-Feb-15 @ 11:30 AM
@Heather - I hope that is the case and he stays away. But if he doesn't is there any way he can have the baby without me being there. Like is there a law that says the parent has to have the baby on his own and the mother cannot be there at all?
Sally123 - 19-Feb-15 @ 1:30 PM
@sally123 - he will have some rights if his name is on the birth certificate and he has parental responsibility - in which case he may try and get access through the courts. Hopefully, if he's as nasty as you say he is, he'll not be interested and leave you alone.
Heather - 19-Feb-15 @ 12:32 PM
@candybums - the mother can give the child the same surname as the father if she wants. She does not need the father's consent. I hope this helps.
ChildSupportLaws - 19-Feb-15 @ 9:55 AM
Myself and my children who are 8 and 10 would like to emigrate to Australia to be with close family. I had a bad split from their dad 4 years ago. He had contact for a year or so but was never consistant. Sometimes he wouldn't even turn up when he had arranged to. My children finally got fed up with this and decided they didn't want to see him anymore. He hasn't seen them for nearly two years and they've not had so much as a Christmas card through the door. I don't think he will give me permission to take them purely due to spite. I was wondering if I had to take him to court would they take into consideration my children's wishes or are they too young? Thanks in advance
lulu - 18-Feb-15 @ 7:59 PM
@Ben- Sorry to hear this. You could apply for a prohibitive steps order if you are unhappy about the situation. If you have parental responsibility and you don't think it is your child's best interests then it may be the best route to take. I hope this helps.
ChildSupportLaws - 18-Feb-15 @ 2:21 PM
@Kate33 - you do not have to attend mediation. However, if you don't and your ex wants to take it to court, then he can. He must have given a reason why he wants to take you to mediation and the new terms he is looking for? You have two options; you can either consent to the mediation and try and sort it out between you, or it will be left up to the courts to decide. I hope this helps.
ChildSupportLaws - 18-Feb-15 @ 2:00 PM
@Betty2012 - legal aid is pretty hard to come by these days. But each case is different, so I'm afraid we couldn't advise on this.
ChildSupportLaws - 18-Feb-15 @ 12:11 PM
Me and my boyfriend split up a month ago, he walked away and left me 4 and a half months pregnant, he was very nasty about the situation as were his family (they are muslim and I am christian) I am scared that he will try to come back and take our child in the future and I am scared since he has made direct threats to our babies life and wellbeing and has said he hates the baby and me for being pregnant. I want to know if there is any way he could ever take the baby without me being there? As I do not trust him one bit with our child.
sally123 - 17-Feb-15 @ 9:28 PM
@Paul - I'm sorry to hear this news. If you wanted to try to obtain custody then you would have go through the court of law. You would need to use Children Act form C1 which is readily available from the HM Courts and Tribunal Service website. The order that you will be seeking from the court is a ‘residence order’. However, the best and most effective way to parent any child is through mutual agreement, so perhaps once the dust settles you could come to an agreement with your ex regarding what is best for your daughter. I hope this helps.
ChildSupportLaws - 17-Feb-15 @ 12:56 PM
@Lainey1987 - Usually the other way around and it is the mother that is stopping access. I suggest you give him an ultimatum and sit down and try and organise set times for him to see her. Put it in writing to him once agreed and say if he reneges on the arrangement without prior warning or enough notice, then you will stop access and he will have to take you to court. If it goes to court then the court will enforce set times.
Debs - 17-Feb-15 @ 11:20 AM
My husband, who was my fiance at the time he impregnated his ex wife. The ex gave birth 3 days after we got married. She refuses to change her surname from ours so I just wanted to know if the baby's surname is also pyne and if my husband's name appears on the birth certificate when he didn't sign anything?
candybums - 17-Feb-15 @ 5:41 AM
Hi my daughters mum has just dropped the bombshell that she wants to take my daughter with her to live with her new partner (down south) I don't have any issues with the moving part it's the 4 hour journey away and I'm basically left with the accept it or go to court options either way I don't think I can do anything about it. Is there anything help or advice you could give me please?
Ben - 16-Feb-15 @ 10:35 PM
Hi my ex wants me to go to mediationover access for him to see our child. I'm not sure why I have to go has he has access to him every Wednesday for a few hrs and every other wk end, I have a feeling he just wants to take me to court for whatever reason! I went to mediation today by myself and I told her I wasn't sure why I was there it was pointless and a waste of my time and money as my ex has reasonable contact. I can't afford £195 per session!Can he still take me to court? I had to call the police last week on him as he is harassing me, I didn't want them to do anything just to log it. We both have lawyers but his has advised mediation.Can someone help please?
Kate33 - 16-Feb-15 @ 8:55 PM
I know you can legal aid if you are on benefits for mediation with regards to children. What if one one party does not agree to mediation and they go straight to court, do you still get legal aid? Thanks in advance
Betty2012 - 16-Feb-15 @ 4:31 PM
Hi This week has been the worst week of my live my fiancé said she does not love me anymore and has moved out to her mums and taken my 2 year old daughter with her she is sharing a bed room with the mum and her sister and living in a travel cot. I want to know why she has the right to move out with my daughter when I think my daughter would be better at home with me I do have PR. Thanks in advance Adam
Paul - 15-Feb-15 @ 12:21 PM
My ex hasn't seen our daughter since Christmas day 2014... He seen her for 45 minutes! He works away but has 3 weeks home at a time! During his most recent 3 weeks home he didn't once get in touch with regards to our daughter, and instead took a weeks holiday to France and ignored her the rest of the time! He came home yesterday again for the next 3 weeks home and still hasn't been in touch! I don't know what to do anymore! I don't want to stop access but I feel he is traSting my child unfairly, and she's starting to notice his absence! She's 5! He would rather spend his weekends getting drunk than spending time with his child. And on more than one occasion when he's had her for the weekend I've found him out and drunk in the pub and he's left his girlfriend with my daughter! Whom I've also had problems with! I need advice!
Lainey1987 - 14-Feb-15 @ 9:14 PM
@Emma - you will more than likely be asked to go to mediation first and then if you can't agree access terms then he may be able to pursue his requested terms through the court. If you say you have never stopped him having access, could you not write him a letter stating this and then come to an agreement between yourselves? I hope this helps.
ChildSupportLaws - 13-Feb-15 @ 1:56 PM
Hi. My daughters dad hasn't seen her since 24.12.14 (his choice) if he wants to see her he has to contact my mum due to the nature of our relationship (not civil at all) But he's now threatening to take me to court to get access even though I haven't ever stopped him. Will I still have to go to court about this? Thanks in advance
Emma - 12-Feb-15 @ 3:47 PM
@Natalie - I have included an article regarding child custody rights link here. It may be that you need to take it to court or apply for a prohibited steps order which may be able to put a halt to your ex taking your son to live with him without your consent. At the same time you could apply for a residency order if you want to apply to have your child to live with you. It may mean you would have to go to mediation in order to try and work it out between you and your ex. If you can't come to an agreement, then the courts will decide what is in the best interests of your child. I hope this helps.
ChildSupportLaws - 11-Feb-15 @ 2:48 PM
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