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advice needed on applying for variation of contact

  • sleepybird
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07 Aug 12 #347917 by sleepybird
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Hello

My partner is considering applying to court for a variation of the contact order he has to his son.

His x will not agree to any additional contact and sees the contact order as maximum amount of time my partner is allowed.

He has asked for a few hours extra here and there on occasions and she always refuses, even if its just 1 hour she will refuse.

She says the only way she will allow extra time is if son who is 4 rings and asks her himself.

x lives hour and half away so oppurtunitys for more contact are limited.

My question is, is my partner likely to get more time agreed at this stage? (The final contact order was made in April) or is he just wasting his time.

Son asks my partner to stay for longer but when made to ask her permission says he doesnt want to see his daddy for more time.
and seems scared.

My partner wrote her an email last night explaining that he''d like extra time and his concerns that son has to ask her for more time and that any additional time with his daddy is surely in his best interests. (he sees him every other weekend for 1 night until 2013 when it increses to 2 nights.

Hes also asked to pick son up from school when friday contact starts next year and to have him until 6pm instead of 4pm when he hasnt got school the next day during holiday time.

She refused it all, saying its not in sons best interests for more time and that she knows best and will not budge from the contact order and has been flexible at times (which she hasnt at all) She said that son doesnt want to see my partner any more than he does already and so take her to court as she thinks the judge will see her point.

any advice please, are we wasting our time applying? i think it would just do my partner in if we went back just for the judge to side with her.

thanks

  • happyagain
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07 Aug 12 #347924 by happyagain
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If you don''t try, you will never know!
My sd (and her 2 brothers) has been having court defined overnight contact, 3 nights per fortnight fri- mon, and 5 weeks of holidays, since she was 4. My own daughter has been staying with her dad for similar lengths of time since she was 3.
In my opinion, given the distance between you, one night is not enough per fortnight. It should be at least 2 nights to compensate for the lack of midweek contact. Many judges would agree, a small minority may not.
One reason to return to court would be that you had understood additional contact would be negotiable but mum has refused all requests, hence you feel the order is not being carried out in the spirit it was intended.

  • TBagpuss
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07 Aug 12 #347928 by TBagpuss
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1 night per fortnight is not much - As your partenr lives too far away for mid week contact to be practical, I would have thought that Fri - Sun would be more reaspnable, plus generous holiday contact.

However, If the order was only made in April this year, I think your partner is going to struggle to get a change as the oder was only made 3 months ago (unless there has been a significant change in circumstances)

It is also inappropriate for your partner''s ex to be putting their child in the position of being expected to ask for more - he is FOUR, for heaven''s sake - he needs his parents to be parents and to make that decision for him.

It may be worth his while to write or email to her.
he shoudl set out politely what he proposes, explain that son enjoys the time with his dad, and asks about staying longer.
If the order provides for "such further and other contact as may be agreed" then flag this up, and remind her that it was envisoned when the order was agreed that thee two of them would be flexible and would agree additional contact (if that is true)

It may be worth suggesting that you have a trial run of just one weekend wioth a longer vist, with assurances from your partner that he will bring son back early if he seems at all unsettled.

Ask whether seh is willing to go to mediation to discuss contact.

None of this may work, but if she responds and gives reasons for her views it gives him something to work with.

I think if he waits until the rder has been in place for at least 6 months he would have a better chance as he would be able to point to a longer period of her not being flexible or being willing to agree to additional contacts.

The other issue (which is always very hard) is to consider what impact more court proceedings and (invitably) increased stress/hostility will have on his son. I am sure his son would enjoy spending more time with dad, but even if he is sucessful it does come at a cost to his son .

n summery - I think moer contact would be reasonable - I suspect it may not be achieveable right now and unfortunatly the down side of applying will be there whether he suceeds or not, in terms of the added tress for his son (not to mention the stress and finacial cost to him personally)

Is it possible for your partner to visit his son closer to home in the week? it may be worth suggesting that s a short term compromise.

  • sleepybird
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07 Aug 12 #347936 by sleepybird
Reply from sleepybird
thanks for the replys

I didn''t really make myself clear. my partner has been having son from fri to sun once a month and just sat to sun once a month.

he has also got him next week for 5 days.

The time is being dropped to 1 night every other week from sept to jan when it will then increase to 2 nights every other week.

My partner has already emailed her a polite proposal stating that more contact would benefit son and that he shouldn''t be made to ask for contact.

She has replied saying she will not agree to more contact and will stick to the order. It''s not in sons best interest to see dad more often and that she doesn''t think he wants to anyway so she will
Only do what son wants and feels it''s too soon for any more contact.

He''s literally only asked her for a few hours extra when son hasn''t got school the next day and to be able to collect him from school on a Friday when he''s due to have him from 2013

She has said that she will on occasion allow an extra hour if she''s not made plans and if son calls her and asks her himself.

  • zonked
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07 Aug 12 #347970 by zonked
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I agree that it would be difficult to change a contact order that is so recent. To say ''the court got it wrong'' won''t wash, as Tbagpuss says you''d need to demonstrate some significant change.

The only arguement I can see from your post would be to say that the mother previousely indicated a willingess to consider additional contact and the court made the order with that expectation.

You might also add that the child currently has x amount of contact which will go down to y amount and in 2013 to z amount. You would say that your proposals would be helpful and supportive to the child in making these transitions.


Am not sure about if this next bit is a good idea or not, you''d need to take your own view.

A delicate point to make would be to argue that a consequence of the existing order is that the child is asked about contact arrangments, which has the potential to be detrimental to him. You have to be careful how you approach this issue. Mum might say, he''s being asked due to your pressure. Or the court might feel you are being overtly hostile towards mum.

If you go down this road you would argue that by making a new order, with the additional contact clearly defined it would
mean the child was no longer asked about contact issues and that such an order contributes to the reduction of parental conflict by allowing both parties to know where they stand.

  • Bobbinalong
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07 Aug 12 #347979 by Bobbinalong
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I think the advice you have is fair. It maybe too soon to get court involved.
BEST thing, is, note everything that happens, all correspondance etc. Really your best application is for a re enforcemant of the order and if you get that opportunity, to vary it at the same time, but depends how your ex plays it. I would at least give it until after xmas, that usually stirs up some issues and see how things go, you could then apply early next year when you have more to go with.
Its quite common what you have, I am in the same boat and my ex sticks to the order to the hour, sometimes to her benifit rarely to exceed mine.

  • sleepybird
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07 Aug 12 #348010 by sleepybird
Reply from sleepybird
Thanks for your advice.

Does anyone know if id be right in thinking that a contact order is seen by the courts as a minimum amount of time the Respondant is to make the child available not the maximum unless of course there are restrictions in place due to violence etc????

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