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Can anyone please describe how this works or if it does really exist?
Is there a point before court proceedings where judge / solicitors agree if a case is to actually be heard & if the case submitted is reasonable for a court to actually adjudicate on?
e.g. would a court hear a case to split a family because the father did not want to move out even if all the children wanted to remain but only with the mother.. So the case requests her residency for his & the youngest, whilst she & the eldest say over 15 years are at liberty to 'leave'?
Would that be a reasonable case for a court to hear?. (NB there is no abuse or harm involved to any party)
Hi
You're question's a little confusing, with very little info it's hard to give a suitable answer really.
Generally when an application is made to the court it's not a case of the judge and solicitors getting together beforehand to decide whether the application is viable. If the application is unreasonable then the court can refuse to make an order but that would be after looking at the facts of the case....it wouldn't happen prior to the hearing.
I think it unlikely that they would split the children. If the parents are unable to live under the same roof, due to the separation, then one usually finds alternative accommodation. Even when there is a joint mortgage, the father is usually the one that leaves the marital home. This is for various reasons, the atmosphere has a bad effect on the children because of arguments etc, the mother starts making allegations of DV, the parents find living under one roof untenable..... If the mother is insisting on staying in the family home then it is usual for the father to leave, although it can be the other way round if the mother chooses to leave....it just depends.
I doubt whether a court would order that the father and one child should leave the home. Unless this was an agreement made by both parents and the children were happy with it, in which case you wouldn't have to ask the court to decide. If the mother is saying she wants to stay in the home with both the children then the court can make an order of occupation and residency for the children. Because the children are old enough to be listened to, their feelings and wishes would be taken into account.
It's difficult to give advice without the full facts so I can only give my opinion based on what is likely, at the end of the day other factors that I am unaware of could hold sway.
Hi
You're question's a little confusing, with very little info it's hard to give a suitable answer really.
Dont want to give much detail away am afraidGenerally when an application is made to the court it's not a case of the judge and solicitors getting together beforehand to decide whether the application is viable. If the application is unreasonable then the court can refuse to make an order but that would be after looking at the facts of the case....it wouldn't happen prior to the hearing.
Ah ok if its an unreasonable case or argument / submission then the court may review at 1st hearing & tell the parties(s) to go away think again. I think that is what I thought happened & was this reasonableness test concept?
I think it unlikely that they would split the children. If the parents are unable to live under the same roof, due to the separation, then one usually finds alternative accommodation. Even when there is a joint mortgage, the father is usually the one that leaves the marital home. This is for various reasons, the atmosphere has a bad effect on the children because of arguments etc, the mother starts making allegations of DV, the parents find living under one roof untenable..... If the mother is insisting on staying in the family home then it is usual for the father to leave, although it can be the other way round if the mother chooses to leave....it just depends.
So i think your saying a Residence order for all 3 kids to live with the mother at home does not force the father leave?
I doubt whether a court would order that the father and one child should leave the home. Unless this was an agreement made by both parents and the children were happy with it, in which case you wouldn't have to ask the court to decide. If the mother is saying she wants to stay in the home with both the children then the court can make an order of occupation and residency for the children. Because the children are old enough to be listened to, their feelings and wishes would be taken into account.
It's difficult to give advice without the full facts so I can only give my opinion based on what is likely, at the end of the day other factors that I am unaware of could hold sway.
Thank you you your view helps even with sparse detail given 🙂 .
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I think the situation will be all 3 kids want to live at home together with one parent. How can they get rid of the other parent (joint owners, residents in common, unmarried), A residence order does not seem enough?
I think the situation will be all 3 kids want to live at home together with one parent. How can they get rid of the other parent (joint owners, residents in common, unmarried), A residence order does not seem enough?
This may be where you have to be careful. Your ex could possibly apply for an occupation order which could exclude you frm the property.
My understanding is that they are not given lightly and often in instances of domestic violence. You see why I say be careful.
Regards,
Dave
No DV is occurring, kids are old enough to verify that & to state their view. Don't think there are grounds unless its the old say anything to get one angle in which case the kids will object & act. They are not minors under 10, they are 17,to 11.
But am being careful 😉
The judge may consider you are being unreasonable by refusing to move out.... It depends on where the judges sentiments lie. Some judges are gender biased and always seem to side with the mother and feel that children should where at all possible stay with the mother.
If your ex has a solicitor it wouldn't surprise me if she was advised to seek an occupation order. There are various forms of DV and your wife could box clever and state that you are maintaining control by refusing to leave and this could be seen as emotional/psychological abuse.
...a Residence Order cannot be made for your 17 year old, so it would apply only to children under 16. Courts are loathe to split siblings and as there are no reasons to do so I cannot see this happening....I think you are on thin ice and as has been said you need to be proceed cautiously.
Because neither of you are prepared to leave the marital home my worry is that the children will be forced to choose between the two of you and this can impact very badly on them. The guilt that they may carry being stuck in the middle of a fight between warring parents can have far reaching effects on them. I would say that at the point when a parent decides to leave the home it could be because someone needs to be the bigger person.
I think in situations like yours mediation could help as long as it is family inclusive and the children can sit around the table with the parents and speak openly about their issues and the best way forward for them. Decisions made by the court are often not the result that anyone wanted at the beginning.
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