Son now wants to live with me

Hi, I am currently going through divorce process, had Nisi, awaiting response from her solicitor re Consent Order. Currently my 16yr old daughter and 12 year old son live with her by mutual agreement through mediation and I have shared parental responsibility and contact three nights a week. She has a new partner who stays over regularly and my son is uncomfortable with this and also has difficult relationship with my ex wife anyway.

He has contacted me upset to say that he wants to live with me and my partner as he feels uncomfortable and upset at home with her.

I don''t know what to do, do I have to file a residence order, can I do this myself or will I need to pay solicitors extra to represent me on family matters as previously this has been resolved through mediation and not involved solicitors.

Can I just move my son in permanently and inform her of the changes? She threatened me before with police and all kinds but she was told straight by solicitor that they would not get involved as no law broken.

Please help

Steve

Hi Steve

How old is your mediation agreement?

The first thing that you need to do is to talk to your ex about it if you haven''t already. Would she consent to change the arrangements or the days that your son sleeps over at each of your houses, perhaps so that your son spends more nights at your house than hers? Presumably your son will want to spend some nights at her house, even if he were to be living with you predominantly, so which nights would he be happy to spend there?

You could use mediation to help you get an agreement, and in any event you can''t apply to court without an FM1 form which you need to get from a mediator.

You can apply to court without a solicitor if you can''t agree. You''d fill in form C100 applying for a residence order. There''s a £215 application fee and if you were doing it as a litigant in person (i.e. without a solicitor) then there are no other fees. The process would likely be that you apply, and you''d be given a hearing date. Before that hearing you''d be contacted by CAFCASS who would do some safeguarding checks (criminal records, social services involvement, any allegations of violence, mental health problems or substance abuse issues) and write a report with some recommendations to the court before your first hearing.

If there''s still no agreement then it''s likely that the court would order a full CAFCASS report, probably with a Needs, Wishes and Feelings report. This would involve a CAFCASS officer speaking to both of you, probably in person, as well as your son. They would then write a detailed report with recommendations on where your son should live. There is a waiting time for these kinds of reports which varies by area but is typically at least 4 months.

After that report is completed you would probably have a review hearing to find out if there''s any agreement, and if there still is no agreement then you''d have to have a final hearing where you both may need to give evidence, cross examine each other and the CAFCASS officer etc.

The likely time scale for the whole process would be at least 6 months, very likely longer.

At 12 years old your son''s views would carry significant weight, and may well determine the outcome. You should talk to him about it before starting anything though because if he should change his mind later then the whole process could be a waste of time.

Court should be the last resort. It''s frustrating and ultimately tends to make everyone involved more miserable! If you can avoid it by getting an agreement, even if it''s that your ex''s new partner stays over less often when your son is there, then it would be easier, cheaper and less emotionally draining for all of you.

Stephan you need to be really careful how you approach this. There has been at least one example on this forum of a dad who took his child''s request at face value, went to court only to find that the child retracted once he realised mum was getting upset. The net result was that all relationships were poisoned and contact actually lessened.

Thanks for the posts, its really helpful. My son has expressed that he wants to live with me throughout the last year that the divorce and mediation process was going on but my ex wife would not accept this and stated that he was just saying this when he was angry with her, so I kept asking for the mediator to speak to him independently but she kept refusing and mediator couldn''t speak to him without consent of both of us. I have tried so hard to be patient and accepted all the restrictions and limitations she placed on my contact with my son for the sake of enabling the process to go smoothly. Eventually I abandoned mediation after i had the agreement of being able to see my son three overnight visits a week because she was just using the sessions as a bullying session to punish me and the mediator allowed this to continue to the point where she did nothing to stop her upsetting me even when i had to leave sessions half way through so upset i was in tears! the mediator did not appear to acknowledge the fact that i have been bullied by this woman for 20 years and even now i had left was using the children to continue this.
Anyway, i have contacted her to tell her about my sons wishes and what he has expressed to me, she again does not accept it so i have told her that he will be moving in with me in the new year and her contact arrangements will be as he wants, 2 nights a week (he initially did not want to see her at all).
I''m sure she will challenge this in court and so be it. I know that this is what my son has been telling me for the last year so i''m confident when he speaks to court appointed representative he will explain his wishes clearly to them. she has in the past threatened me with the police when my son has refused to go back to her house!

one more question, my solicitors are Brethertons, fixed fee divorce and consent order, for family representation i will need to pay them extra as this is separate. I have had conflicting advice, some people have said stick with them because they are good at family law even though they are not local and can keep tabs on the whole case, others have said use brethertons for the divorce but speak to a local solicitor for the family proceedings, not sure what to do for best? any views?

Any court proceedings for children will be held in the court closest to where the child resides upon application.If you use Bretherton''s for family matters, are they local to the court you will need to use? If not, I would choose a local solicitor, at least this way, you know they will be able to represent you personally in court. Solicitors in the local area will also have experience of the judges in the area and will be able to gauge and give you advise on how particular judges view certain matters.

Thank you.

Hi, I understand everything said.

What if my child is so upset and distressed with his living arrangements?

He is only age 8 but never wants to go home to his mum after spending the weekend with me, says he doesn''t care if he has to leave his 10 year old brother behind.

I have explained to him that he needs to live with his brother so that they can look out for each other.

I cant talk to the mother, as she has made everything so difficult, I have no way of even contacting my children.

I wish to know two things. I don''t care about the relationship with the mother because there isn''t one, my level of contact with my children quite frankly couldn''t be made any less or worse.

1. The official way to go about getting the arrangement changed.

2. If I didn''t return him home due to his emotional state, realistically what would happen? There is no occupation order, I raised a contact order to ensure a minimum level of contact for the children''s sake. Sure it stipulates a time I have to return them home by a certain time

Thanks