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

Author: Elizabeth Mugan BA/BSc, PGDipLaw, BVC, CIArb - Updated: 27 August 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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[Add a Comment]
Hi i have a 9 yr old daughter and 8 yr old son. Their dad left me wen my daughter was 1. I have had very minimal contact with him other than an odd msg out of the blue asking how his daughter is. Never his son as he has denied he is his child. I reveive £1 a week child support. His name is on my daughters birth cert but not my sons. Hes threateing now too take me to court too see my daughter. She does not even no him. My partner as brought my children up as his own and they only know him as their dad. Their biolgical dad has been in and out of prison numerous times. Help please on what i can do.
samjc1985 - 27-Aug-15 @ 11:53 AM
I was with my partner for 15 years ,not married but lived together. We have 3 daughter's, 14 ,4 & 11months . He cheated on me and has since said he hasn't loved me for the last year or so and has formed a relationship with the woman . He is not paying child suport or helping out financially ,he has the two older girls for two nights a week but wont take the baby as he can't handle taking care of baby's. He has told me he wants to move in with the woman he's been seeing and wants the kids to meet her and stay with them on the nights he has them . I do not want this just yet as it is a new relationship and the kid's are still confused as to why mummy and daddy can'tlive together anymore . What are my rights here ? Oh and he was violent with me at one stage and hit me .
frightened - 27-Aug-15 @ 10:21 AM
dilemma - Your Question:
Hi I need advice my daughter is just over 4, her father left me just after she was 1, he never helped out with raising her didn't pay child support denied my daughter was his but now his parents are telling him to take me to court to get her, he cant just take her away ? she doesn't even know him

Our Response:
It is highly unlikely that your ex will be successful in getting residency through the courts if he has never been a part of her life. He may however be granted access and that will be up to the courts to decide what level of access he will get, whether it is to be supervised or unsupervised. If he applies to the court, the court will suggest mediation in the first instance, however mediation is voluntary. Please see our partner article: Mediation: What is it and is it For Me?, link here . If this doesn't suit or work, then he can take you to court in order to instigate access arrangements, in which case Cafcass will get involved, please see: What Goes into the Cafcass Family Report? Link here. The court will then make a decision based on the back of the report and what it thinks is in the best interests of your child. I hope this helps.
ChildSupportLaws - 26-Aug-15 @ 9:57 AM
Hi I need advice my daughter is just over 4, her father left me just after she was 1, he never helped out with raising her didn't pay child support denied my daughter was his but now his parents are telling him to take me to court to get her, he cant just take her away ? she doesn't even know him
dilemma - 25-Aug-15 @ 2:52 AM
hi im wanting to split with my partner i have not been happy for a long time but he doesnt want to split and hes threating to take our 3 year old with him and get full custody eventhough i said i would let him see her anyway but he woudnt listen.im scared that if we split hes going to take her and not give her back what can i do?
cjones - 22-Aug-15 @ 8:53 AM
Hi i have a 2 year old some I've not long split up with baby's dad and I need some advice on what rights My Baby's dad has he has a drug and alcohol addition he doesn't care about my son from day one my little boy was in hospital for 7weeks due to being 3months early and instead of being there he would be getting out his nut I don't want my son to be around that I've begged him to stop but he hasn't it's got that bad to the point I ended up with a broken bone because he lashed out I can't have my son In danger what rights does he have with my son please
Mummy - 22-Aug-15 @ 6:00 AM
PR is not issued in terms of percentage rates, it's an all or nothing responsibility. The fact that your ex is not contributing as much to the parentage in terms of input, will be naturally reflected in any future court case (if he was to take you to court over a disagreement on a decision you might make).
Oll - 17-Aug-15 @ 12:22 PM
Distressed Mother- Your Question:
I have a 9 month daughtet from a interfaith marriage. My husband and I are separated after a 10 year marriage and his constant cheating. he is now threatning me with trying to take my baby to India. I work full time and he works part time. Sometimes during the day my daughter is with him. What can I do to make sure he doesn't abduct my daugter. If he takes her to india it would be impossible to bring her back. Also my husband was refused British nationality due to bad character. Does this mean he still has rights? can anyone please tell me what I can do to stop him fro taking her abroad, his saying he wants to take her to meet grand parents but has threatene me a few times of abduction. please help

Our Response:
. Child abduction by a parent is rare. However, the increase in travel availability, better links with foreign countries means that cases where one parent takes a child on holiday and is pursued by the other parent on abduction charges are more common. Any situations in which a person leaves the UK with their child without official consent of the non-resident parent can be classed as abduction. A Prohibited Steps Order (PSO) may be of help to you, as it 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. If you are highly concerned, then you could stop access immediately or only grant your ex supervised access to your daughter and apply to the courts to have a supervised order put in place. You seek some legal advice on the matter. I hope this helps.
ChildSupportLaws - 17-Aug-15 @ 9:53 AM
My husband and I separated amicably 3 years ago. My son is resident with me, he visits his father every Fri night, and stays over until early evening Saturday. Although he has joint responsibility as we were married for 2 years prior to having our son, it is not equal. My husband does not take leave when my son is sick, get involved in major decisions like selecting schools, attending doctors appointments etc. He usually pays child support but has been sacked on more than one occasion, then it stops until he regains work. I am happy that his access continues but how do I limit his joint PR. While things have remained amicable, I do not want my husband to be able to make unreasonable demands in future (which he is very likely to do if I enter another relationship) and it is unfair that in practice he does 1/7th of the parenting work but has 50% legal responsibility. Is the court likely to accept my having sole responsibility if I file for divorce with continued access?
Redchester - 14-Aug-15 @ 7:49 PM
I have a 9 month daughtet from a interfaith marriage. My husband and I are separated after a 10 year marriage and his constant cheating. he is now threatning me with trying to take my baby to India. I work full time and he works part time. Sometimes during the day my daughter is with him. What can I do to make sure he doesn't abduct my daugter. If he takes her to india it would be impossible to bring her back. Also my husband was refused British nationality due to bad character. Does this mean he still has rights? can anyone please tell me what I can do to stop him fro taking her abroad, his saying he wants to take her to meet grand parents but has threatene me a few times of abduction. please help
Distressed Mother - 14-Aug-15 @ 12:39 AM
Hi my ex and i have been seperated for over 7 years never married but he is on the birth certificate. He has never really bothered with our son. But of late he has started to make demands , he see's him once a week. But i am terrified he will try and take him away from me. If he did take our child would i be able to get him back? also he is getting married will his wife get PR for my child?
jadey - 12-Aug-15 @ 12:49 PM
@rich - if you take your child out of the country without your wife's permission then I'm afraid it would be classed as abduction. If your aim is to move permanently with your child back to the UK and your other partner does not agree with the move, you will find some obstacles in your way. To be granted a move you must prove to a court that you have a reasonable and realistic plan which has the best interests of your child's welfare at heart. Obviously, if your plan involves taking your child to a country where contact with the mother will be limited, the child's welfare will be called into question. The law will always try to consider the child's feeling in these situations, depending on age and understanding. Children over the age of 11 will normally have a deciding say in the relocation, while if a teenager expresses a wish to remain, it is very rare that a court will demand that they leave with the parent. I hope this helps.
ChildSupportLaws - 5-Aug-15 @ 10:07 AM
My partner has kicked me out of our new house we got of the council I have been there from day one my daughter loves me and is no no way in any danger she was goin to let me see her and have her untill I took my property out of the new house she is now refusing to let me see her her mum has agreed to bring my daughter to my brother house 1 day a week untill I've gone to court but I wouldn't no the first thing to do I work also ? Could someone contact me wth some help.
Dan - 5-Aug-15 @ 8:56 AM
@jon - it depends if PR was removed from your ex via the courts. If not, and it is unlikely, it means you have the same rights as a mother with custody, which means the non-resident parent would have visitation rights to your child and other decision-making responsibilities of PR.
ChildSupportLaws - 4-Aug-15 @ 2:00 PM
Hi, I came to Australia with my Family because my wife was homesick, when I got there should told me to go as she is home with her family. My daughter is English like me as she is an IVF baby and is very special to me. My wife said I cant take her back to England to live to me in our country......How do I stand ?
rich - 2-Aug-15 @ 9:59 AM
ive been granted full residency of my children 3 years ago and PR, I'm a father and I just want to know if my ex the kids mum still has PR or its solely me ?
jon - 1-Aug-15 @ 10:35 PM
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
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