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I have recently walked out on my wife and 16 month year old son after 10 months of [censored]. Nobody else is involved. My wife and I have already made a private agreement for child maintenance but we are already in deadlock over contact. For reasons of financial hardship, I have had to move back in with my mother and am unable to get my own accomodation until March of next year. When we initially discussed contact, I feared that I would get minimal access due to my son's age, but instead my wife has told me that I will have to have him every weekend (unless she takes him on holiday or it is a public holiday, i.e. Christmas), with her dropping him off on a Friday evening and picking him up on a Sunday afternoon. I was also told that I would have to take 3 weeks holiday with him to coincide with the childminders holidays and that I cannot have any weekends off unless either my mother, son or I are taken ill. This was her final offer !! After much ranting and raving by my wife about my lack of knowledge about raising children, I managed to negotiate a transition period for my son so that he would come over for a few Saturdays and get into a routine before moving onto an overnight stay, but now I have reached a problem with my mum saying that she will only allow my son into her tiny 2 bedroom flat 3 weekends a month and that the Friday dropoff is unacceptable as my mum works long hours in the City. I am terribly confused as to why my wife is dictating my contact arrangements with no regard to our son, my current situation and would like to know my legal position. I am perfectly happy to take my son every weekend when I have the means to do so, and would like to have a framework in place to decide about holidays. The welfare of my son is of paramount importance to me. Should I go for a contact order to formalise everything ? I have also now seriously considered going for custody as my wife leaves my son with a childminder all week (including school holidays despite her being employed as a teacher), but cannot do so for at least 9 months, again due to financial and work commitments, and am sure that I would need to wait 2 years to go down this route.
Proper legal advice sounds like it's needed here, but....
As far as I am aware, the court will not/cannot force you to have custody more than you are able, and they certainly cannot force your mother to accomodate your child.
It sounds to me as though your ex is punishing you for walking out, and giving herself the opportunity for a hectic social life while denying you the same.
It may be worth suggesting some sort of mediation service with your ex to resolve this.
Dear Legendary Clint,
Thank you for contacting the Children’s Legal Centre, an independent charity concerned with law and policy affecting children and young people.
As the resident parent, your wife is able to control the contact that you have with your son.
Although you can not be forced to have you child at times that are not convenient for you, the mother can make things difficult and restrict the contact if you do not have him when she asks.
The mother should also be considering your son’s welfare as paramount and making decisions regarding contact with his best interests in mind. However she does have the right to control all contact as the child lives with her and can tell you when she is prepared to allow you to see your son, and if you are unable to make these times she does not have to offer an alternative.
Unfortunately, parents do not have a right to see their children, it is children that have a right to see their parents, and as your son is too young to exercise this right himself, it is able to be controlled by whoever the child lives with unless there is a court order in place.
You are able to make an application to court for a contact order if you wish to do so. The court would consider all the circumstances and decide what contact to grant. There is a presumption that contact with both parents is best for the child and this will usually be granted unless there are any safety issues.
A court order would be legally binding and the mother may be penalised if she refuses to allow you to see your child on the set times. Although you will not be penalised for not taking the contact in the order, if you do not the mother would have good reasons to apply for this order to be discharged, in which case the situation would revert back to her being able to control the contact.
With regards to residence, you do have the ability to make this application, but there usually has to be quite substantial reasons to remove a child from the residence in which they have become accustomed. You would be required to prove to the court that the child’s best interest would be better served by living with you.
You are able to make applications to the court either by representing yourself or by instructing a solicitor to represent you.
Generally it is advisable that where possible before going to court you attempt some form of mediation to try and come to an agreement yourselves. The contact number for National Family Mediation 01392 271610.
We hope this information is useful to you, should you require any further advice please contact our Child Law Advice Line on 0808 8020 008 and an advisor will be happy to assist.
Kind Regards
Children’s Legal Centre
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