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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 7273
Experience:  28 years as a practising solicitor.
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Child Access and the Extent to Which Mother can Dictate

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Hello, I have a question regarding child access and the extent to which it can be dictated by the mother. To cut a long and rather compliacted story short my partner had a breif relationship (8 weeks) about two years ago with someone who i would have considered a friend (not close) at that point in time. She found out she was pregnant after 7 weeks and decided to keep the baby against my patners wishes. there are more details to this but I;m not sure they matter now, she initially claimed the baby was definately his, then that she'd lost it, thenadmitted she didn't know who that father was but was keeping it regardless and would not perform a prenatal paternity test. She ended the relationship with my now partner and would not give him any indiciation as to how the pregnany was progressing.  We actuially found out on Facebook he had been born, she did not tell my partner directly. She never informed the other potential father of the situation. So to be clear there was no overlap of relationships or cheating involved - she had ended the relationship with my partner before we got together which was during the time of uncertainty of paternity. After the child was birn she agreed to a paternity test which showed my partner was indeed the father. Although he did not want the child he felt duty bound to have input in it's life so we discussed how this could be managed and it was decided that we would attempt to adapt together. Once the child was born and the test carried out my partner spoke with the mother of the child explaining that he was now in a serious relationship and as such the baby would be integrated into our lives as it now is which is living together. Although she initially agreed and we were both present for the access visits (in a neutral place every two weeks) she then decided I was not allowed to be there any more and if my partner wanted to see his child it would be without me at her house. We tried to find a compromise in that she would leave the child with my patners parents and then we would get to spend an hour with him without her having to 'see' me. Despite having agreed to this the first time we tried she changed her mind afterwards stating my partner would have to go to a solicitor if he wanted to see him unless he is willing to go to her house alone. This has resulted in my partner not seeing his child now for over a year. My question is this - can she dictate who my partner spends his access time with the child with? Can she insist it is only with her at her property? Furthermore she has refused to put my partners name on teh child's birth certificate although accepts monthly maintainence money. In the eyes of the law can she insist on a condition where I am excluded and if so for how long? i pose no risk to this child, I do not drink excessively, take drugs or have any form of violent behaviour. I am struggling to forsee how my partner and I can integrate this child into our lives with these barriers in place. Is this something he will need to do alone and keep seperate from me and any children we have? He has a paternity tets but no birth certiificate. We are planning on getting married - will it make any difference if I am his wife? Can she still insist on my exclusion?


i should also add she has a 6 year old child from a previous relationsip whom she allows to be taken away and spend time with the father and his partner.


 


We are not youngsters either, my partner and I are 31 and 30 respetively and the woman in question 30. I have never been exposed to this type of behaviour before and am very unsure of how to handle it. Neither of us wanted this situation, the decision to have the baby was hers alone, we just want to get on with our lives and incorporate the child but we will not accept her in addition. Is it possible to have a relationship with the child without having a relationship with her?

Submitted: 1 year ago.
Category: Scots Law
Expert:  JGM replied 1 year ago.
Thank you for your question.

Your partner needs to see a solicitor soon. He should have done so a long time ago.

Whether a child should be exposed to a partner depends on whether that would or would not be adverse to the best interests of the child at the particular point in time. From your narrative and given the age of the child I see no reason why this should be the case and it would appear that the mother has her own agenda or is just being bloody minded. I suspect the latter given your description of how she has changed her mind over the period in various ways.

I suggest that your partner apply for a contact order as well as a declarator of paternity (to cure the fact that he is not on the birth certificate). The court can then adjudicate on the issue of contact and if she has good reasons why you should not be allowed to be present at contact visits she can state them to the court and the court can decide.

Where there is a stable relationship and potentially a marriage I see no good reason for excluding you from forming a relationship with the child. The law is that she can't dictate what happens at a contact visit and only the court can do so, once parental rights are conferred on your partner by the court. At the moment he doesn't have parental rights as he is not on the birth certificate, hence the need to apply for the declarator of paternity.

Happy to discuss further.

I hope this helps. Please leave a positive response so that I am credited for my time.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 7273
Experience: 28 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 1 year ago.

 


 



Hello again,


 


Thank you for the feedback yesterday. I was wondering if you could provide more information regarding the declaration of paternity. My partner is nervous about going to court due to child maintenance payments. He has paid child maintenance at an agreed amount since the paternity test revealed the child was his. Both he and the child's mother agreed this was a fair amount (around £400 a month). However, my partner runs his own business and if she were to go through the CSA based on a 15% basis he may be liable for almost double that. As the relationship with the child's mother was brief she does not have any details of his personal income and whilst he is happy to contribute to his child’s upbringing he does not want to be in a position where has an ‘open cheque book’. During the time we were trying to negotiate access amicable she did threaten several times to go to the CSA. My question is this – if my partner goes ahead and applies for a declaration of paternity and contact order through the court will the either automatically adjust his maintenance payments to 15% or could she ask that the whole case be revisited? In other words, if she was ‘aggravated’ by my partner going through court could she punish him financially? They agreed on this amount and to date she has not asked him for any more, would the court seek to rule on this as well or is child maintenance and a declaration of paternity/contact order treated separately? May be a cynical way of looking at it but given her behavior to date this wouldn’t surprise me if she attempted this.


 


Presently the only option my partner feels is to give into her and go out to her house and see him alone for a period of time (say three months) until she agrees to let him take the child away. However, given the broken agreements and trustworthiness displayed to date I am unwilling to do this and feel we need to find a more empowered way of moving forward. I feel that if she did not have a problem with my partner and I doing this together her actions would have demonstrated this already and we would have been able to agree on the initial or compromised situation of his parents being present as mediators. As she changed her mind even when his parents were there and she did not have to see me I have no confidence that things would be any different at the end of such a ‘trial period’. As far as she is concerned my partner needs to do this to ‘prove’ his worthiness of being involved in his son’s life and that she can trust him. I feel, however, this is tantamount to blackmail and is forcing his to choose his child over his partner which is a choice he should not have to make. I don’t believe this is an appropriate demand, would a court likely consider it to be??


 


As I’m sure you can imagine this has caused some problems to date and I am keen to find out just what she can and cannot insist on rather than making assumptions based on experience neither of us have. Another note to add was access that her previous partner has was obtained through court, I am guessing that this is the best route for my partner and I if he seriously wants to gain access to his child whilst protecting his relationship with me. From the feedback you gave yesterday it does seem there is a possibility to regain some of this ‘power’ from her and obtain rights which would stop her being able to dictate my exclusion and the conditions of access. My partner’s assumption seems to be that even if he is granted access by a court she can still insist I am not there or that it is at her house which, if I understood your response correctly yesterday is entirely not the case? Is my understanding correct?


 


I appreciate these are further questions and am happy to provide additional payment if required.


 


 


Many thanks,


Jasmine


 


 

Expert:  JGM replied 1 year ago.
The issues of contact and maintenance are two different things. The court will not take anything to do with maintenance only issues relating to what are in the best interests of the child.

However a parent with care has the right to override a maintenance agreement by going to the CSA at any time and it is not unheard of for this to happen of that parent is annoyed with the other for whatever reason. He could, being self employed, adjust his business structure quite easily so as to minimise his CSA liability should it come to that but the court will not have anything to do with child maintenance unless the absent parent earns more than £104000 net per annum.

I tend to agree with you that she should not be able to dictate when and in what circumstances the father of her child sees him. He is entitled to equal parental rights and has parental responsibilities under the Children (Scotland) Act 1995 which you can read online. I understand that he doesn't want to rock the boat but in my experience he should get this sorted out now otherwise he will have months, if not years of hassle with this this woman.

Unless there are any care issues with the child there is no reason why he should be confined to her house during contact visits.

Finally, a court would only insist on a partner not being present during contact visits if there was some compelling reason why this should be the case which goes to the best interests of the child test. The starting point is that the father can take the child to see whoever he wants during contact as it is "his" time, not the mothers.

Your partner has to stop being intimidated by her and get this into court if it can't be sorted otherwise. In the same way that the other person did and presumably she has complied with that order.

I hope this helps. Please leave positive feedback so that I am credited for my time.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 7273
Experience: 28 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 1 year ago.

 



Thank you again for getting back to me so quickly with these details. One last question - He has structured his business so that he receives just over minimum wage but takes irregular dividends to limit any CSA liability should she decide to do this. However, from the research we carried out dividends were a bit of a grey area and could be considered income. In your experience does the CSA normally count dividend payments? If they counted only his 'salary' in fact the monthly payment would be reduced.


 


Thank you very much for your advice. as you can imagine everyone has their opinion on this. I have been steadfast from the start (to considerable criticism) that if this was to work it would need to be together and the mother would have to accept that, after all we were together before the child was confirmed as my partners by her choice through refusing a prenatal test. We cannot live with months or years of strain caused by this woman, our intensions are good and unfortunately all that is happening with her behavior is the negativity is being transferred to the child. It is not his fault and I believe if my partner stopped being intimidated by her we could successfully move on with our lives and include the child. Your advice has provided some much needed clarity for me at least and I hope for my partner. I hope he can see now he has some solid options.

Expert:  JGM replied 1 year ago.
When the Child Support Agency is assessing the income of a director of a limited company it will usually do so with regard to all the various sources of income that director may have.
As you may be aware, as well as unearned income or any additional income from other employment, company directors may benefit from some or all of the following:
• remuneration (earnings);
• share dividend(s);
• debenture interest; and/or
• drawings.
Consequently to enable it to make an accurate calculation of a director's earnings, the agency will usually request sight of company accounts and/or self-assessment tax return details. It is normal for the accounts/self assessment details to reflect a period of not less than 6 months, which ended in the period not more than 24 months prior to the request for assessment.
That said, given that on occasion companies may experience dramatic fluctuations in business activity (for example because of the loss/gain of major contracts or perhaps in light of increased competition), in such circumstances the agency can use its discretion to gather evidence of income from a period other than that stipulated in the previous paragraph. Before it does so, the agency should be satisfied that the usual accounting period (as described above) would not provide an accurate reflection of earnings.

As you are about to be married, your partner may want to consider giving you a share in the company so that some dividends could be paid to you. The income of a spouse or partner is not taken into account by the CSA.

I hope that this helps. Please leave positive feedback so that I am credited for my time.
Customer: replied 1 year ago.


Thanks again for your help. Your advice is greatly appreciated.

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