Legal Guardianship - will it affect CSA payments 1 December 2017 at 7:38PM in MoneySaving dads 8 replies 5K views

Fellsta

I am in a serious relationship, with my partner. She has 2 kids to a previous waste of space. She is currently fighting to get him to pay his Child maintenance. However the boys are both on the Autistic Spectrum, and my partner is chronically ill.

We are discussing how I can take on legal guardianship, but what I need to know is will this affect his legal requirement to pay?

I am not being greedy, the money that he is meant to be paying would be an absolutel lifeline to us at the moment - this man was a violent abusive husband, hasn't seen his boys for 7-8 years, he has rarely paid anything maintenance to them, hasn't even sent a bithday card.

If anyone is able to offer some advice it would be hugely appreciated. Thanks in advance 🙏🏻

TBagpuss

What do you mean by taking on legal guardianship?
Generally speaking, the liability for maintenance will only change if the paying party's position changes, e.g. if there is a new child in his household or if his income alters.

Your partner can delegate her parental responsibility to you (effectively giving you permission to exercise it on her behalf, so you can deal with schools, doctors etc. This would't affect maintenance.

She can appoint you as the children's guardian in her will, but that would only take effect if (i) she died and (ii) her ex doesn't have PR.

What are you trying to achieve in terms of 'guardianship'?

unforeseen

The mother cannot delegate parental responsibility. The only way to get parental responsibility is if all who currently have PR agree (I assume father has PR) or it gets awarded by the courts.

She can delegate responsibility for looking after the child but the mother is still liable as the person with PR

Fellsta

Basically if something happened to my partner, neither of us want the biological father (or his family) to have anything to do with bringing up the boys. So I am trying to make sure that if the worst did happen I continue to be their parent. I have been a father for them for many years now and they love me very much. I would hate for legalities etc to force us apart.

unforeseen

She can name you as their guardian in her will, however anybody with PR still takes primacy over the will.

You would need to go to court to attempt to gain guardianship and will probably need deep pockets to do it. Your best hope is that the father doesn't decide to take on the children.

unforeseen

As far as CSA/CMS is concerned, if you gain legal guardianship then you will be able to claim CB and maintenance from the remaining parent.

squirrelchops

You could consider step parent adoption. You would need to apply via your local Children's Services (aka social services) department. Contact them for advice.

TBagpuss

unforeseen wrote: »

The mother cannot delegate parental responsibility. The only way to get parental responsibility is if all who currently have PR agree (I assume father has PR) or it gets awarded by the courts.

She can delegate responsibility for looking after the child but the mother is still liable as the person with PR

Yes, she can delegate PR. It's extremely common. Normally it is fairly informal but it is entirely possible to do on a more formal basis if you want. It doesn't change the mother's own PR (or that of the father) You are delegating, not transferring it. The delegation would not last past her death, but at the time I gave the answer OP had not stated that that as his intention.

TBagpuss

Fellsta wrote: »

Basically if something happened to my partner, neither of us want the biological father (or his family) to have anything to do with bringing up the boys. So I am trying to make sure that if the worst did happen I continue to be their parent. I have been a father for them for many years now and they love me very much. I would hate for legalities etc to force us apart.

OK, assuming that the biological father has PR it's pretty difficult to exclude him. A court has the power to remove PR but would only do so in exceptional circumstances (e.g. if he was using it to stalk and harass the family, and all other ways of stipping him had failed)

If he were to agree, and if you and the children's mother are married, then the three of you could sign a Parental Responsibility Agreement which would give you PR as well as them both having it, so you would have a legal right to be involved in decisions about the children.

Step-parent adoption is very rare these days, and would require the father to consent, and the court to be satisfied that it was in the children's interests life long.

The most practical and effective way to do it is for your partner to make a will, and to appoint you as guardian (which won't take effect while their father is alive, but is a sensible precaution in case he were to die before her) and to make, and regularly update, a letter of wishes, setting out what she feels is in the best interests of the children and why. You and she could also take out life insurance to ensure that there is a 'fighting fund' so that if you need to go to court you can.

As the children get older, their own wishes become increasingly important, and in any event, a court would make a decision based on what is in the best interests of the children at the time the application is made.

If the children don't currently have a relationship with their biological father then it is unlikely that a court would consider it in their best interest to move them from their home and the person who they have known as a father, particularly when they had just been bereaved.