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Your relationship has broken down. In the case of a marriage, it may end in divorce in the future or may have already ended. Your resulting relationship with your former partner will lie somewhere between bitter and amicable.
Whatever the relationship with your former partner, you must remember that your children have to maintain a relationship with both of you.. This can be extremely difficult and distressing for them if there are frictions and fights between you as parents. The children are caught up in the middle and can be emotionally torn apart in the attempt to work out and balance their loyalties to both parents.
The plea of this sheet is for co-operation as parents between yourself and your former partner so far as it lies within your power to do so. We have no doubt that the best interests of your children will be served by such co-operation.
It is to this end that we set out below various do's and dont's in relation to contact firstly on the part of the party with residence, secondly on the part of the party exercising reasonable contact and thirdly on the part of both.
PARTY WITH RESIDENCE
A.1.1. BE POSITIVE ABOUT CONTACT
It is the responsibility of the parent having residence to prepare the children mentally, emotionally and physically for contact. This is done by expressing positive views about contact and encouraging the children to participate fully and wholeheartedly. You may not FEEL this way, but nevertheless it is in the children's best interests if you convey to them this view or desire.
A.1.2. HAVE THE CHILDREN READY ON TIME
It will assist the smooth working of the contact if you have the children ready for collection at the arranged time.
A.1.3. SUPPLY NECESSARY CLOTHING
The children should be sent for contact in clothing and footwear suitable to the time of year. Also, if contact involves staying overnight, they should have with them the necessary change of clothing, nightwear, toothbrush, etc. The precise requirements will depend upon the arrangements with your former partner.
A.2 DON'T CHANGE THE CONTACT ARRANGEMENTS ARBITRARILY
The contact collection arrangements will be at a specific time from a specific place. The same will be true of the return arrangements. Please stick to these arrangements unless it is absolutely necessary to make a change. Any such change should be after sufficient notice to the former partner.
B. PARTY EXERCISING CONTACT
B.1.1. BE REGULAR
Make sure to keep the contact arrangements. Otherwise you will risk causing great disappointment to the children and damaging your relationship with them. It is very distressing for the children if you turn up sometimes and not at others.
B.1.2. BE PUNCTUAL
Late collection and return will cause great inconvenience to your former partner and will result in unnecessary frictions and difficulties in respect of contact.
B.1.3. BE RESPONSIBLE
Make the contact a special time with the children. Give them your time and attention. Do things of interest with them. Do not treat the contact as a burden or chore. Do not dump the children on some other person such as a grandparent. The contact has the purpose of building and maintaining YOUR relationship with the children.
B.1.4. RETURN THE CHILDREN IN A CLEAN AND TIDY CONDITION
Children will be children and will get dirty. However, as far as possible, you should try and return them in a clean and tidy condition. The return of dishevelled and dirty children will not do anything for the relationship and co-operation with your former partner!
B.2.1. DON'T UNDERESTIMATE THE RESIDENTIAL PARENT'S AUTHORITY
The residential parent has to discipline the children on a day to day basis. You should not undermine the discipline. Rather, you should support and add to it to the best of your ability. It is not in the children's best interests if they are able to play one parent against the other. They need to be faced with a united front.
B.2.2. DON'T OVERTREAT THE CHILDREN
It is a temptation on contact visits to spoil the children. This temptation should be avoided. It is not helpful if the children see you as the parent providing the 'treats' and the residential parent as the one who disciplines them. Such treatment may boost you ego or fulfil your view of your relationship with the children BUT it will do nothing for their fundamental upbringing and training.
C. BOTH PARENTS
C.1.1. KEEP THE ARRANGEMENTS
The arrangements which have been agreed for reasonable contact should be treated as very important and given due priority. You should make every effort to stick to the arrangements. Any cancellation or alteration should only be for a good reason.
C.1.2. NOTICE OF CHANGE
Inevitably occasions will arise when for good reason one party will need to cancel or later the contact arrangements on a particular day. If you need to do so, then please give your former partner as much notice as possible. This is only normal courtesy. No-one likes to be messed around at the last minute. Hopefully, your former partner will observe the same courtesy.
Difficulties over contact are best sorted out directly between the parties if at all possible. This means building communication between you. You may have to work at this. Suspicion, distrust, resentment, hurt may all have to be overcome. Be positive, be open to communication, be reasonable.
If you reach a point where it is proving impossible to sort out difficulties directly, you should both consider consulting the mediation service. This is a voluntary organisation whose function is to help former partners work out the differences ad difficulties between them. We can assist in advice and referral to the mediation services.
Alternatively, or as a last resort, you can consult solicitors who can advise upon the options. Correspond with the former partner's solicitors and/or make appropriate applications to the Court.
A. NON-MOLESTATION ORDER
This is the most common form of order sought to restrain violence, threats of violence or harassment. The precise effect of the injunction hen granted is dependant upon the particular wording. This can vary. However, the general effect is to prevent violence, threats, harassment and pestering by the other party.
B. OCCUPATION ORDER
This order requires the other party to leave a stated property and to stay away.
The Courts regard it as a serious matter to exclude a person from their home. Therefore, occupation orders are granted sparingly.
C. INJUNCTION UNDER THE PROTECTION FROM HARASSMENT ACT
This injunction may be available if you have been harassed or pestered by a person on two or more occasions. It is mainly used for protection against stalkers.
Some form of proceedings is required in which to make the above applications. This will depend upon the facts of the case and depends upon whether you are married or cohabiting or seeking an injunction against another person with whom you are not living.
EX PARTE AND ON NOTICE
Where there is evidence of a real and immediate danger of serious injury to the applicant, an order can be obtained ex parte. This means without any notice having to be given to the other party.
However, the ex parte order will only be made for a short period of time, such as a week, to give opportunity for notice of the application to be served on the other party. It is a fundamental legal principal that anyone facing allegations of any kind should have the opportunity to give their version of events. There will then be a hearing 'on notice' when the other party can attend and give evidence.
POWER OF ARREST
If the Court is satisfied upon evidence of the validity of the application, an order will be made dependant upon the seriousness of the allegations and type of order sought. A power of arrest may be attached where there has been either actual bodily harm or a strong element of psychological harm caused by threats of actual bodily harm. Mere fear or apprehension however is not necessarily sufficient, to justify the attachment of a power of arrest.
Frequently, the other party will offer to enter into an undertaking with the Court not to use violence, molest, harass, pester, etc. This is instead of an order. Once given , the undertaking has the same force as an order so that any breach of it is a contempt of court.
If an order or undertaking is breached, an application can be made to the Court to commit the other party to prison.
If satisfied about the evidence, the Court can make a suspended sentence order or, in a serious case, an immediate committal to prison.
The order will last for the period of time stated. This is usually between three to six months.
If there are continuing difficulties as the duration of the order nears expiry, application can be made for an extension.
This act which came into force in October 1991 replaced the term 'parental rights' with 'parental responsibility'
WHAT DOES PARENTAL RESPONSIBILITY MEAN?
The Act does not give any list of what the words mean. It covers responsibility for all aspects of a child's upbringing and welfare. This will include:
- Where the child is to live
- What name he or she is to have
- Medical care
- The day to day requirements
WHO HAS PARENTAL RESPONSIBILITY?
The mother always has automatic parental responsibility. The father only has automatic parental responsibility if married to the mother at the time of the birth of the child. An 'unmarried' father has to acquire parental responsibility either by agreement with the mother or by Court Order.
IF MOTHER AND FATHER BOTH HAVE PARENTAL RESPONSIBILITY MUST THEY CONSULT ABOUT THE CHILD'S UPBRINGING?
The Act DOES NOT create any rights of consultation before action is taken in respect of a child. On the contrary the Act says that each person with parental responsibility may act INDEPENDENTLY in meeting that responsibility (except where the Law requires consent e.g. adoption).
Because of this, parental responsibility is no guarantee of co-operation. Where the child is living with the mother for example, a father with parental responsibility may find it very frustrating that he does not have to be involved in decisions regarding the child. If he disagrees very strongly with what the mother is doing, he will have to apply to the court for either a 'prohibited steps order' or a 'specific issue order'.
CAN PARENTAL RESPONSIBILITY BE LOST OR GIVEN AWAY?
Parental responsibility CANNOT be surrendered or transferred. It can however, be temporarily delegated. Parental Responsibility is not LOST when another person acquires it. Rather parental responsibility is then shared. This is even so when a local authority acquires parental responsibility under a care order.
Parental responsibility is LOST when an adoption order is made and otherwise only in exceptional circumstances.Do I have a claim?
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- A divorce generally takes 4-6 months and it is not necessary to go to Court at all, the whole procedure is done by paperwork.
- Even after parties are divorced, either party can still make a claim against the other either during their life-times or against their estate on death eg after a lottery win! This can be prevented by obtaining a "clean break" consent Order.
- If a divorce is not wanted or possible immediately finances can still be sorted out and a Deed of Separation drawn up.
- Pensions are important - they could be worth even more than the family home. They must be looked at as part of any settlement.
- A Living Together Agreements is an agreement between a cohabiting couple to sort out the day-to-day workings of living together and to give protection for both parties from what ever might happen to the relationship in the future.
- Unmarried fathers do not automatically have any rights save in limited circumstances. It is however possible to obtain those rights, CBA Law can help you obtain those rights.
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