‘I’ll see you in court’ and ‘you’ll hear from my lawyer’ are two of those loose, normally meaningless threats that can sometimes get hurled around in arguments. Certainly before I was finally forced to contest for custody of my daughter, it’s something that had been hurled at me, and perhaps something I’d even uttered myself once or twice. But the ease with which such a sentence can be spat into the air does not reflect the seriousness with which anyone thinking of such action should consider it.
Contesting a custody case is one of grimmest experiences of your life, and that’s why the system is set up to actually deter people from doing it all. Many lawyers will advise you to try the mediation route before even contemplating court, and with good reason. Many disagreements can be settled in this way, and it saves all involved – including the kids – from an otherwise lengthy, costly and draining experience.
Indeed, most couples who decide that they must take their case to the courts will first be required to see if they can resolve things at mediation. Mediation meetings are designed to get both parties together, to allow them to present their side of argument and – hopefully – reach an agreement. They are often conducted by a lawyer, although technically speaking this lawyer is not supposed to give legal advice at these sessions. I say technically because in my final mediation session the lawyer did exactly that (not that the advice was heeded).
If mediation is unsuccessful the next step is filing your papers and filling in the dreaded C100 (and a C1A if you feel your child to be at risk). The C100 is the document that explains why you’re asking for custody or access. You are given a chance to outline your argument – that of course being the factual reasons behind your case and not your personal grievances. The two can be almost impossible to disentangle, of course, and I shall confess that reading my ex-partner’s C100 (which due to an administrative cock-up I did not see until the first day in court) was an absolutely devastating experience.
There are two sides to every story, and no doubt my C100 was met with a level of incredulity as well (as much as, hand on heart, I believe it was factual and fair). Some of the allegations made against me were at the very best heavily skewed bastardisations of the truth, and at worst outright lies. To see such things written down, and to know that this would be presented to the court, was crushing. Fortunately, the courts are accustomed to distinguishing aggrieved hyperbole from relevant fact, and in the long run those words mattered not, although I will likely never fully shake the impact they had on me.
Your first day in court will be for a Directions Hearing. This normally short appointment is the time when both parties will outline their argument. It’s possible that things could be resolved there and then, and if not you’ll get an idea of when you’ll be back in court for the real thing. Certainly in my case the bulk of the time was spent with my barrister hopping back and forth between us trying to broker a temporary agreement that would tide things over until the full hearing.
It’s not just the legal process you have to contend with, either. This is the day when everything stops being a horrible situation in your head and becomes very, very real. You’ll also have to cope with seeing not only your former partner, but quite possibly their family too. I still remember the churning sickness I felt in the pit of my stomach when the people who had only a few months before been my loved and extended family looked at me like I was evil incarnate. After all, it’s not just access to your kids and your former relationship that you’re losing, it’s all of those extended relationships too. Mothers and fathers in law, circles of friends – not only are these relationships often instantly lost, but they all too often turn very sour indeed. The impact of a custody case is abrupt and wide-reaching.
The other thing you’ll have to contend with is CAFCASS. Your case will be assigned a CAFCASS officer who will speak to both parties, and any children. I had to travel to London for this (with my daughter, during the school day I might add!) although your officer might also come to you if things such as housing need to be inspected. The result of this will be a report that will be presented to the court at the full hearing.
Now, my CAFCASS officer was a really nice lady who seemed to very much empathise with and understand my concerns. She was great with my daughter, too. Indeed, upon receipt of her report I was filled with relief, as it absolutely reflected my concerns and recommended a course of action I was entirely comfortable with. Sadly, in court things all went a bit wrong. She froze under the most basic of questioning, with several long and awkward silences, and ended up making statements that contradicted her own report. All of which, I fear, ultimately led to the report being largely dismissed by the magistrates (which is a rarity, statistics suggest) and contributing to what proved to be a wholly unsatisfactory decision.
The final hearing
Whether the subsequent court date proves to be final or not depends very much on the case, although that is how it transpired for me. In court your barrister or solicitor will do all of the hard work, arguing when testimony should be ignored and stressing why your concerns are legitimate. You will be required to answer questions, too. These won’t necessarily be adversarial – this isn’t A Few Good Men – although saying that I did feel that I was pressed a little unfairly, especially by the opposition solicitor, who seemed hell bent on making me admit that I’d changed my mind about a particular detail. Which I had, incidentally, and I clearly admitted and outlined why. This seemed to be insufficient, however, as what was apparently wanted from me was some sort of humiliating backing down – something that I felt in no way compelled to provide. Perhaps the toughest thing, however, was having to sit there and see my ex-partner’s arguments be heard by the court, the sense of injustice swelling in my gut.
The other complication we faced was that our case was not heard by a judge but instead by three magistrates. Three elderly female magistrates, as it happens. Whether this was the root of increased sympathy for mum can never be known (but will definitely be the subject of a future blog post). From the off my barrister was swearily ranting (and her swearing game was top class) about magistrates. She was of the opinion that a judge would be infinitely more preferable. ‘A judge understands the law. Magistrates are f****** stupid’, she told me. ‘You never know what you’re going to get. It’s a lottery.’ Again, this rule is not universal, but certainly her experiences of magistrates were not uniformly positive.
When things go wrong
And as it transpired she was proved correct. The final decision, which came at the end of a very long day, the bulk of which had been spent sitting in a small meeting room waiting for things to happen, was disastrous. None of the safeguards we’d asked for were implemented and the other side effectively got everything they asked for. Up until this point, all the indicators were that our house was completely in order and that, ultimately, we had little to worry about. The decision was a complete curveball that came out of nowhere, leaving me stunned and shaken. I had expected to leave court that day with everything resolved and my daughter’s wellbeing protected. To leave with none of this felt not only like my biggest ever failure, but also like a completely insurmountable new challenge. I felt like I couldn’t possibly endure any more, but nor could I settle for inaction. I think this was the lowest point of my entire life.
Very quickly my barrister informed us that she believed the ruling to be illegal, as she was certain the advice given to the magistrates by the court clerk was incorrect. She was so enraged, in fact, that her immediate advice was that I ignore the ruling, block further contact and thus force us back to court, at which time she’d make sure we’d get a judge and she could fix everything. I was reluctant to do this, and instead we filed for an appeal – a request that was granted without even the need to present directly to a judge. My barrister’s papers were enough to convince them that the ruling had indeed been potentially unlawful.
Another six months (at least) of legal bills and uncertainty loomed, although this was luckily avoided when I managed to get my ex partner to talk to me, and we came to an agreement between us that we both found satisfactory. This was drawn up by my solicitor and before too long was passed by the court.
That was more than a year ago now and, thankfully, things have progressed well. I cannot say for certain that things will be the same for you. Indeed, I cannot guarantee that the situation won’t again turn sour for me, although my confidence that it will not is growing. In fact, writing this article (and the two that preceded it) has definitely dragged up a lot of memories that I think my brain had hitherto suppressed. I guess the mind has a lot of coping mechanisms! It’s a good thing, too, as it would be impossible to dwell on all this and still maintain a relationship with my ex.
Make no mistake – you have to do that. You share a child, and like it or not some sort of relationship must be achieved. The better that relationship is, the better it is for your kid. And for you, really, because hate gets you nowhere. I’m not in any way religious but very much believe that forgiveness is good for the soul, if there is such a thing. If forgiveness is a stretch too far then tolerance is at least a good start!
There is nothing I can say here that will stop your court experience being dreadful, but I hope that some understanding of what lies ahead will help you better prepare and, hopefully, lessen the impact. Ultimately, what you have to tell yourself is that if you are genuinely acting in the best interests of your child, every second of the process will be worthwhile. Because as any parent knows, there’s nothing you won’t do for your kids. If your motivation is anything other than that, however, then I urge you to explore every other avenue possible. Fighting for custody or access in the courts should only ever be a position of last resort when no other option remains.
This article is by Ben Parfitt, a former client of BLB Solicitors. He writes from personal experience. For legal advice on all issues to do with divorce or separation, please contact the family team at BLB Solicitors.
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Image (cropped) by Elliott Brown under a creative commons licence