Child Maintenance & Court Order Issue

CM23

Hi All,

I have a bit of a dilemma... basically there is a court order in place with my ex partner that suggests he should have them every other weekend and a weekday each week.

He no longer has them during the week, and now only has them every other weekend - so his days/nights with the kids have dropped from 10 nights a month down to 6 nights a month.

I have raised the CM claim, and it has been rejected on the basis that there is a court order in place, and regardless of evidence that he no longer has them - he still only has to cover what the court order says.

I have no interest in going back to court and paying money to fight him to see his children, that's his problem - however I don't understand why CM apparently can't work with reality rather than an order that he breaks.

As far as I can tell, he can choose to end all access today, and pay minimal amounts for the children on the basis that the court order says he does have them, even though he doesn't.

Is there anything that can be done, or do i just suck it up that his track record of DV means he gets special treatment in these circumstances?

Thanks in advance for any help  

tacpot12

The law has been written so that CMS can't get involved if there is a court order, and you really don't want any executive branch of the state to be able to overrule the law.

I don't see how you can say that it is his track record of DV that is giving him special treatment when you are the one deciding you can't be bothered to go back to court. If the money is important to you, you could go back to court to ask for the amount of child maintenance he pays to be increased because he is having them less. If you are not bothered about the money, then there is no problem.

You can't force him to make more time for his children than he wants to make himself. He will have to take responsibility for these decisions in later life. 

CM23

Thanks - you'd think that reality would overrule an order that he can break though, is my point.

If there was no history, no order against him - then he would have to pay additional for choosing to see them less, however because of his history the order means he can play games, see them less yet continue to pay the same; therefore a bad history clearly comes with advantages from his perspective.

I don't know where to start, the CMS value is probably not huge - I can get by without it, and the cost of going to court probably outweights the benefits. (Unless you want to tell me otherwise) - I just wondered if there's a way to fix these issues without me having to pay out significant sums in the first instance. I guess the answer is no there's not...

That is exactly my view - I cant force him to see his children, and I dont wan't to force him either, that is his problem as you've pointed out - but in a case where there's no court order - that just gets dealt with by CMS - easy peasy, but in this case - it becomes my problem

ZaSa1418

So you have a court order for maintenance? When was this issued? 

tightauldgit

The solution here would be to go to court and get a new order which reflects the new reality and then present that to CMS. If you have evidence then it shouldn't be all that difficult and wouldn't necessarily need solicitors - just the court fees. 

The problem for CMS is that while a court order is in place then those are the childcare arrangements that are in place and they have to go by what it says. Because that's what all parties should be working to. 

You could in theory also move to get an enforcement order and tell the court that he is not meeting his obligations and has to comply with the order but it feels like in your case you are happy enough with the actual arrangements as they stand you just want the court order and CMS to reflect that reality. 

tightauldgit

ZaSa1418 said:

So you have a court order for maintenance? When was this issued? 

I took it to mean they have a Child Arrangements Order which says day spends X nights a week with child and thus CMS are calculating maintenance due based on child spending X nights a week with dad. However the reality is dad isn't meeting what the CAO says and is actually spending Y (fewer) nights a week with child. Mum would like CMS to pay based on Y nights but they are saying no because the CAO says X.

 

ZaSa1418

tightauldgit said:

ZaSa1418 said:

So you have a court order for maintenance? When was this issued? 

I took it to mean they have a Child Arrangements Order which says day spends X nights a week with child and thus CMS are calculating maintenance due based on child spending X nights a week with dad. However the reality is dad isn't meeting what the CAO says and is actually spending Y (fewer) nights a week with child. Mum would like CMS to pay based on Y nights but they are saying no because the CAO says X.

 

I thought that too at the start but have known the CMS to not deduct nights as per court orders because the RP has said it doesn't happen , i suppose it's probably just another inconsistency of the CMS system 

tightauldgit

ZaSa1418 said:

tightauldgit said:

ZaSa1418 said:

So you have a court order for maintenance? When was this issued? 

I took it to mean they have a Child Arrangements Order which says day spends X nights a week with child and thus CMS are calculating maintenance due based on child spending X nights a week with dad. However the reality is dad isn't meeting what the CAO says and is actually spending Y (fewer) nights a week with child. Mum would like CMS to pay based on Y nights but they are saying no because the CAO says X.

 

I thought that too at the start but have known the CMS to not deduct nights as per court orders because the RP has said it doesn't happen , i suppose it's probably just another inconsistency of the CMS system 

Part of the issue I think with CMS is that people say 'their claim was rejected' but they don't make it clear whether that was an initial claim, an appeal or they pushed it all the way to a tribunal. 

quite often an initial claim is rejected based on paperwork but then an appeal might be heard and other evidence looked at. 

There's no downside to appealing a decision so I don't know why more people don't do it.