Readers' Questions - Children issues

We answer readers' questions about issues to do with children.
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Dear Mary,
I have a 13 month old daughter with my ex partner, we are both seeing new people. My ex is on my daughter's birth certificate. My new partner has got a job in Mexico. I was just wandering where I stand with regards to moving to another country with my daughter. My ex sees our daughter for 4 hours a week, he lost his job last summer and has not paid any money towards my daughter since then.

Because your ex is on the birth certificate, he shares parental responsibility with you (for more information see What is Parental Responsibility? (73 KB)). But this does not mean that you are prevented from going abroad. You do not need his consent to go, but he could apply to *the court to stop you, if he felt strongly about it. Generally the courts don't stop a parent moving with a child, especially a young child with a mother, but you might have to make formal arrangements for contact. This could be by telephone or webcam or e-mail, as well as visits. A family mediation service might be able to help you reach an agreement with your ex (see our Family Mediation pages for more details). The fact that your ex has not paid any maintenance is not enormously significant as the court will look first at the welfare of your daughter and what is in her best interests.
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Dear Mary,
My partner and I have been living together for 15 years now; we have 1 child aged 12 years old. My problem is this, my partner has just received a paternity suit filed in the Czech republic, from the result of a one night stand nearly two years ago (we were going through a bad patch in our relationship, we did split up but remained living together). I was wondering if he is the child’s biological father, besides paying maintenance, will this child be able to inherit my partner's share of our jointly mortgaged property, if anything happens to my partner? (My partner has no will as of the moment), what would this child be able to claim (inheritance) if my partner & I married? Really need your help & advice on this matter, as don’t know where I stand or what I can do about it. Please help ... Thank you.

If your partner is this child’s biological father, he would inherit a share of your partner’s estate if your partner died without a will. All biological or legally adopted children have the same rights when it comes to inheritance (it doesn't matter what relationship they are from). Whether this would include your partner’s share of your house depends on how you own the house. You can jointly own property in two ways – as joint tenants and tenants in common. If you own it as joint tenants – your partner’s share will automatically transfer to you, and not be included in his estate. If you own it as tenants in common on the other hand, his share will be included in his estate, and (along with all his savings, his car, and personal possessions, etc) will be divided between his biological children. See pages 10 and 11 of our Housing guide (350 KB) for more details of your situation.

If you married, the situation would be slightly different because you would inherit the first £250,000 of his estate (and have a life interest in half the rest). Anything left over would be divided equally between your 12 year old and any other biological children your partner may have.

Your partner should make a will, regardless of whether this child is his or not. You should too. Without one you won’t inherit anything from each other (except his share of the home if you own it as joint tenants), and you won’t have the legal right to organise each other’s funerals. If nothing else, making a will also makes things simpler for those you leave behind.

If this is your partner’s child s/he would have a right to challenge his will if it was ‘unfair’ - your child would too, and so would you (if you could prove you were dependent on your partner). For this reason, it is a good idea for your partner to get legal advice as part of making a will.

Read our Wills guide (534 KB) for more details of what will happen if you die without a will, and guidance as to how to make one as quickly, easily, and cheaply as possible.
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Dear Mary,
My lesbian ex-partner and I had a commitment ceremony in front of our families and friends in 1995, and intended from the outset to have children. I conceived our child via donor insemination in 1999 and he was born in February 2000. My partner was present at the scan, the pre-natal lessons and the birth, was given maternity support by her employer, and was in every sense except the biological and legal, his parent. Her parents are his grandparents; her siblings are his uncles and aunts; their children, his cousins. We shared all the expenses of parenting and general daily living, including jointly owning a home. We intended to have a second child, using the same donor, but this time with her as the biological mother.

Then, after a period of relationship difficulty, we separated in November 2002. For months, I asked her for contributions to his expenses, in particular for his nursery fees. She vacillated for an extended period, and eventually paid me £100 in cash towards nursery fees sometime in the spring of 2003.This is the last child support she ever paid me. She told me the next time I asked her that, on reflection, she didn't feel she owed me anything (although I wasn't asking her for maintenance for myself, only for our child). She added that the CSA couldn't get her.

Had we stayed together for the then requisite three years, we had intended to obtain a joint residence order, so that she would have a measure of parental responsibility. Had civil partnership been an option we may well dome that, but it wasn't.

I feel that I should be able to claim support from my ex-partner for our son, now that the principle of equal treatment for same-sex couples is established. If I approach the CSA, what will they say? Will they focus on the biological father, instead of the person who not only was, but is, his other parent, including having him stay with her several nights a week, every week? I doubt that, if pushed, my ex-partner would feel able to deny that she is the parent of our son - will the CSA take these facts into account?

Unfortunately, your ex is correct - she cannot be forced to pay child support as the law does not recognise her as your son's other parent. If you had formed a civil partnership (if that had been possible at the time), the situation would be very different, but unfortunately that doesn't help you now.

The Child Support Agency will not pursue your ex partner. And to make matters worse, if you are on benefits they do have the power to pursue the child's biological father. If you do not co-operate with this, they can punish you by cutting your benefit for up to three years.

I'm sorry that I cannot give you better news. It's a very tough situation and it's hard to see what you are supposed to do. I think your only option is to try again to persuade her. Family mediation might help, if you can get her to go. You could use it to deal with all aspects of arrangements to do with your son. For more information on family mediation, and to listen in on a session with our podcasts, go to our dedicated Family Mediation pages.
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Hi Mary,
I split up from my partner 18 months ago. We have three children, one of which is registered disabled. Last year we had a fire and my house burnt down, although the insurance is rebuilding it. My middle child is frightened about going back, so I want to move but my ex wants half the property equity - if I give him this and I won't be able to afford to buy a house. Please help!

This does sound like a very stressful and sad situation, but don't worry - I think there's a way through it.

You don't say whether the house is owned in joint names or just yours. If the house is in joint names you need to go and see a family solicitor (follow the link at the right of the page to find a member of Resolution, family law specialists). A solicitor can help you make a claim (probably a combined application under the Trusts of Land and Appointment of Trustees Act and the Children Act) arguing that you should have the house as a home for the children until they grow up. This would normally be until your youngest is 18, but could last for much longer if your disabled child continues to need housing after that age. You should be able to get an order that would let you move and hold a new house on the same terms as the old one. This would mean that your ex-partner would not get his share until the children no longer need to be housed.

If the house is in your name only, then your position is slightly easier. It would be up to your ex to bring the claim, so you should just stick to your guns for the moment. If he does try to make a claim, the Trusts of Land Act and the Children Act will back you up.

For more information see the "what happens if we split up?" sections on pages 10 and 11 of our guide to Housing & LivingTogether (350 KB).

October 2010