How to proceed with separation

[Leo]

Assuming the parents in the case you are referring to were married; custody would only be removed from a parent if it was established that they were not a fit and proper person.

I believe the term custody and primary carer are being confused here.

No confusion, custody was at stake.

 

[elcato]

Moving out imo is not an option. Your hubby could stop paying his share of the mortgage and leave you saddled with arrears not even taking into account he may trash the place when/if you get possession. You would also have to pay rent elsewhere which would not be cheap. The fact that there was mediation gives some hope. Find out what he wants first. Does he want the house and is he willing to buy you out ?

 

[iamaspinner]

[I am not a lawyer]

Did each of you have your own solicitor when in mediation? We availed of free mediation, which was facilitated by 1 solicitor; we then got our own to sign Deeds, etc.

If not would it make sense to get one to try and get the other party back to the negotiating table before going to court? I guess some people reluctantly do when they realise what they're getting into (and how much it's going to cost).

In any case I wish you the best of luck.

 

[Thirsty]

No confusion, custody was at stake.

Then there was a lot more to the case than you or I know of.

A parent's custodial rights and responsibilities are not removed solely because they left the family home.

 

[Leo]

Then there was a lot more to the case than you or I know of.

Really? You were there?

A parent's custodial rights and responsibilities are not removed solely because they left the family home.

You may need to educate the judge so. If one parent cannot provide a suitable home environment for their children, it is common that they will not be awarded custody until such time as they can resolve that.

 

[Thirsty]

Here's the thing:

If the parents were married, they automatically have joint custody.

To remove custodial rights and responsibilities from one or other parent requires that they it be established that they are not a fit and proper person, it is a high bar, rightly so and generally means there is significant evidence (medical/ gardai / social services) to support the claim.

The primary concern is the care and welfare of the children of the marriage, so yes of course you need to have a home if you are to provide the primary care.

If you are saying that the mother wished to remove custodial rights from the father and have sole custody awarded to herself, then

a. she needed to establish that the father was not a fit and proper person (see earlier note) and
b. confirm she should provide a home for them

If the children were at risk in being with the father, they would be immediately removed (with all the usually caveats in regards to our overstretched social services).

I suspect, based on your posts, that mother moved out of family home, wished to have children live with her and was (rightly) advised that if the children were to be removed from their home and their father's care, she needed to be able to show that she had an adequate home for them. That's perfectly reasonable. The care and welfare of the children is of primary concern, which is as it should be.

If the applicant was successful in gaining sole custody and the father's rights were removed, then sadly, there was likely to be significant trauma experienced in their marriage - see earlier note (which is why I say there was more here than you or I could know).

Even if she couldn't do that at the time (provide a home) and the children remained under their father's care, she still would not have lost her custodial rights and responsibilities, unless it was established that she was not a fit and proper person (see earlier note).

Again: a parent's custodial rights and responsibilities are not removed solely because they left the family home, it would be unjust and unreasonable to do so, and bad and all as our judicial and family law system is, it's not that bad.

All other things being equal in separation / divorce cases the usual order is that parents have joint custody and one parent is the primary carer.

So to bring it back to the OP - if they feel they cannot continue as they are and that it would be 'torture' do so do; then they can move out, they will not lose custodial rights.

 

[Leo]

I suspect, based on your posts, that mother moved out of family home, wished to have children live with her and was (rightly) advised that if the children were to be removed from their home and their father's care, she needed to be able to show that she had an adequate home for them. That's perfectly reasonable. The care and welfare of the children is of primary concern, which is as it should be.

You suspect incorrectly. As already stated, she was forced out of the family home (physically), she was not applying for sole custody. She was told in court that had she not sorted suitable accommodation, she would lose joint custody and be restricted to visitation rights.

 

[Thirsty]

So tell me if any of this is incorrect..

1. the mother had left the family home (leaving aside how that happened).
2. she was no longer living with her children
3. children were living in family home with father
4. mother wished to have children living with her

 

[Leo]

So tell me if any of this is incorrect..

1. the mother had left the family home (leaving aside how that happened). Yes
2. she was no longer living with her children No
3. children were living in family home with father No
4. mother wished to have children living with her Partial

 

[Thirsty]

Your replies make it even less clear; the children were not living with either parent and the mother only half wanted them?

In any event, I will repeat again for the OP and anyone else reading this:

You will not lose your rights because you left the family home.

 

[Leo]

Your replies make it even less clear; the children were not living with either parent and the mother only half wanted them?

Your questions suggested yes/no responses, and you continue to make up your own version of what I'm saying. Where did I say the children weren't living with either parent? What does 'half wanted them' even mean?

You will not lose your rights because you left the family home.

Again, I've only experience of one case, but that is in direct contradiction with what the judge said in that case. Your experience may vary.

Ruby, there is every chance moving out and leaving the child in sole care of your partner will be used against you in proceedings, do not make any move prior to consultation with your solicitor.