Knowing that I’m going through the divorce process I have been asked by a work colleague if I know anything about child custody issues.
The situation is that his sister aged 42 passed away just after Christmas leaving two boys age 12 and 15. His sister had been living next door to him in an adjoining house ever since she got married. Her husband moved out and they got divorced some 5 years ago. She was given a residency order and the boys visit their father every other Saturday for the day.
In her will she has stated that she wants my colleague and his father to be the legal guardians. The grandfather aged 60 has now moved in with the boys. They all live as an extended family with all meals being eaten next door. The boys have stated that they don’t want to move and are happy were they are. They have always lived in the same house and it offers them a safe and stable environment.
With their ages I would have thought their opinions would have some legal standing?
They are still waiting for probate and my colleague is currently funding all the expenses associated with his nephew’s. He is quite happy for the boys to stop as they are.
My colleague however is now concerned as the boys fathers is talking about them going to live with him and his new wife with whom he has a daughter. The boys have a poor relationship with their father and do not want to live with him. Their father makes no financial contributions towards the boys. When they visit their father his new wife ignores the boys totally and makes no effort to interact with them at all.
Prior to the divorce the boys had been subjected to beatings and abuse at the hands of their father. Officially there are no formal records of any of this.
My colleague is now wondering were he stands as far as formalising his and the grandfathers guardian ship of his nephew’s.
My sympathy to your colleague, the boys are certainly of an age to have their opinions taken into account and if they strongly disagree with living with their father and his new wife and family then a Judge would listen to any alternative arrangements. Is it the case that the boys would in effect still be able to live in the house nextdoor to your colleague i.e. their home - which from my experience would be a strong argument for the Courts to take into consideration. Your colleague and his father need to seek advice from a Probate lawyer who is also able to seek advice from a Family lawyer as they are so intertwined. From a personal perspective wouldn't a round the table discussion be possible albeit in such sad circumstances?
Yes the boys would carry on living in the house next door in fact the only home they have ever known. Currently they both have their own rooms. Their Grandfather has the 3rd room.
If the boys were to go to live with their father they would then have to share a room. My colleague is also some what puzzled as to why the father wants them to live with him now? as apparently he has never been to concernd about their welfare in the past
Something i didn't mention in my 1st post is that the Grandmother also died a few weeks after their mother!
Yes this family certainly has had more than it's fair share of tragedy in a very short space of time!
The fact that there is a Residency Order is a very important point. With this in place, if his sister stated that your friend and their father be appointed guardians on her death then in the first instance this is what stands. Their father would have to challenge any residency order through the courts. The onus is therefore on their father to apply to the court for residency and prove that he is a better person for the children to live with. Knowing the ages of the children and the circumstances I would think in my opinion he would be fighting a losing battle.
Talk to me if you want further clarification Jacko.
The children will have a say and in my view they are of an age to give instructions.
They should see an experianced matrimonial solicitor -they would qualify for legal aid and the Court will have to consider all the issues -children's view will be an important consideration
I agree with Sarah - Handled sensitively the solicitor may even engineer the father to see a Mediator who the children can make their feelings known.
If he does apply to the Court -most 1st appointments in larger County Courts have a CAFCASS officer present who speak to the parties about whether there can be a likely agreement- If the father is told by the CAFCASS officer the C don't want to live with him the DJ will likely tell him he is fighting an uphill battle......now if the F doesn't believe the C's solicitor their wishes the Crt can order a wishes and feelings report which may take 6 weeks to turn round.