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

By: Elizabeth Mugan BA/BSc, PGDipLaw, BVC, CIArb - Updated: 16 Jun 2024 |
 
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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Johan - 15-Nov-23 @ 11:29 AM
Dr Salem I want to start first by saying a big “thank you” to you . There are a bunch of nuts out there just trying to make a fast buck, but you are genuine! I prayed before I went online that God would send me exactly where I needed to go to find help for my problems concerning my love life.. And I mean I went directly to your site and felt it was the place I needed to be. now my family is reunited and my lover is back to me with masses of love. I’m forever grateful! Dr. Salem is legitimate and his gift is for real. Of that I am certain, Thank you thank you!!! you can contact him on this email: salem manifest lover spell AT gmail. com WhatsApp +234 805 397 4975
LOVE SPELL - 2-Nov-23 @ 11:19 PM
Dr Salem I want to start first by saying a big “thank you” to you . There are a bunch of nuts out there just trying to make a fast buck, but you are genuine! I prayed before I went online that God would send me exactly where I needed to go to find help for my problems concerning my love life.. And I mean I went directly to your site and felt it was the place I needed to be. now my family is reunited and my lover is back to me with masses of love. I’m forever grateful! Dr. Salem is legitimate and his gift is for real. Of that I am certain, Thank you thank you!!! you can contact him on this email: salem manifest lover spell @ g mail. com WhatsApp +234 805 397 4975
LOVE SPELL - 2-Nov-23 @ 11:00 PM
Dr Salem I want to start first by saying a big “thank you” to you . There are a bunch of nuts out there just trying to make a fast buck, but you are genuine! I prayed before I went online that God would send me exactly where I needed to go to find help for my problems concerning my love life.. And I mean I went directly to your site and felt it was the place I needed to be. now my family is reunited and my lover is back to me with masses of love. I’m forever grateful! Dr. Salem is legitimate and his gift is for real. Of that I am certain, Thank you thank you!!! you can contact him on this email: salemmanifestloverspell@gmail. com or salemmanifestloverspell@outlook. com WhatsApp +234 805 397 4975
LOVE SPELL - 2-Nov-23 @ 10:59 PM
i want to share to the whole world how Dr Kachi the Great of all the Spell Caster, that helped me reunite my marriage back, my Ex Husband broke up with me 3months ago, I have been trying to get him back ever since then, i was worried and so confused because i love him so much. I was really going too much depressed, he left me with my kids and just ignored me constantly. I have begged him for forgiveness through text messages for him to come back home and the kids crying and miss their dad but he wont reply, I wanted him back desperately. we were in a very good couple and yet he just ignores me and get on with his life just like that, so i was looking for help after reading a post of Dr Kachi on the internet when i saw a lady name SHARRON testified that Dr Kachi cast a Pure love spell to stop divorce. and i also met with other, it was about how he brought back her Ex lover in less than 24 hours at the end of her testimony she dropped his email, I contacted Dr Kachi via email and explained my problem to Dr Kachi and he told me what went wrong with my husband and how it happen, that he will restored my marriage back, and to my greatest surprise my Ex husband came back to me, and he apologized for his mistake, and for the pain he caused me and my children. Then from that day our marriage is now stronger than how it was before, Dr Kachi you're a real spell caster, you can also get your Ex back and live with him happily: Contact Email drkachispellcast AT gmail. com his Text Number and Call: +1 (209) 893-8075.
Davis - 27-Oct-23 @ 9:57 AM
I want to testify what Dr Ughulu did for me. I did everything I could do to bring my partner back but he didn't come back he was with someone else luckily I saw a comment which directed me to a very good powerful and kind man called Dr Ughulu that helped me bring my partner back and now he loves me so much more than ever i am so happy with life now thank you so much Dr Ughulu, I'm really appreciate you for bringing back my partner to me in my life, all these years has been very sad for me now I have been the most happiest man in this world all because of Dr Ughulu he has done a lot for me. You can contact throw his email: drughulu powerful spelltemple at gmail. com or call him: +1(252409-1841
Juliana Divas - 25-Oct-23 @ 5:47 PM
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