My Ex-partner is Trying to Use Child Care Arrangements to Remain in the UK
As specialist Family Law Solicitors and London Immigration Lawyers, we are regularly asked for legal advice when one parent believes their ex-partner is only requesting custody or contact with the children to secure a Parent of a Child Visa. If you think you are in that situation speak to our expert Family Law Solicitors.
Online and London Family Law Solicitors
For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
Our lawyers speak Arabic, Armenian, Farsi, French/Mauritian Creole, Spanish, Tamil Tagalog/Ilonggo, Urdu/Punjabi.
Suspicious of Why Your Ex-partner Wants Custody or Shared Care
You may be suspicious of why your partner wants shared care after your separation if they showed little interest in caring for the children or spending time with them while you lived together.
There may be several reasons why they want shared custody:
- Priorities have changed because of the separation and they have seen the error of their ways in not putting the child’s needs first
- Child support as under English Child Maintenance Service rules no child support is payable where child custody is shared equally- this applies even where one parent earns a lot more than the other one
- Financial settlement as they assume they will have a stronger case for more of the family assets if they equally share the care of their children and therefore have a good argument to say they should remain in the family home or get enough equity to rehouse themselves and the children
Our Family Law Solicitors work closely with our specialist team of Immigration Lawyers and can advise if the reasoning behind a child arrangement order application by your ex-partner could be due to their planned Parent of a Child Visa application.
Opposing a Custody or Shared Care Application
Your former partner may want your agreement to a transfer of care or to shared care to help their visa application as the Home Office requires evidence of the childcare arrangements. If you don’t agree with their request they could apply to the family court in England for a child arrangement order.
If you don’t think that your ex’s childcare plans are in the best interests of your child you can oppose their application for a child arrangement order. The court will base its decision based on the best interests of your child rather than your ex-partner’s UK immigration status. However, you should focus on why your ex-partner’s plans are not child-focused rather than emphasising immigration status. That’s because the court will decide a child arrangement order application based on its assessment of what’s best for your child. For example, you may think that your child moving to live with your ex is not in your child’s best interests as your ex was not a hands-on parent during your relationship, putting the focus on their parenting capacity rather than immigration status.
Children as Visa Pawns in Separation or Divorce
You may think that you may have been used as a means to secure UK entry clearance if your husband, wife, civil partner or unmarried partner came to the UK on a Spouse Visa, Civil Partner Visa or Unmarried Partner Visa and your relationship has broken down. That certainly isn’t always the case; sometimes relationships just don’t work out.
Your spouse or unmarried partner may be tempted to use the children to stay in the UK if your separation from them means their Spouse Visa or Unmarried Partner Visa is being curtailed by the Home Office. Normally, if a couple separates and the immigration status of one partner is dependent on an ongoing family relationship, their Spouse Visa or Unmarried Partner Visa is shortened or curtailed to 60 days. The partner subject to UK immigration control either needs to leave the UK or apply for a new visa.
The Family Visa rules are different if the reason for the relationship breakdown was domestic violence. In that situation, the partner in the UK on a Family Visa can apply for Indefinite Leave to Remain using the domestic violence concession. That applies even if they haven’t lived in the UK for five years.
If a parent can't remain on a Spouse Visa or Unmarried Partner Visa then they may consider applying for a Parent of a Child Visa. That’s when the sponsoring partner who sponsored their partner’s entry on a Spouse Visa or Unmarried Partner Visa can end up thinking that their ex-partner is using childcare arrangements as a means to stay in the UK through securing a Parent of a Child Visa.
In some situations, you may agree that co-parenting is in your child’s best interests and want to help your former partner secure a child arrangement order by agreement. Our Family Law Solicitors can either help you secure an agreed order or advise you on how best to oppose your ex-partner’s application.
Parents Who Need a Parent of a Child Visa
Parents who need a Parent of a Child Visa could be those in the UK on a Family Visa where their relationship has broken down and as they are not British and don’t have settled status (Indefinite Leave to Remain or settled status under the EU Settlement Scheme) they either need to leave the UK or switch visa.
Other parents who may need a Parent of a Child Visa are those who are currently living overseas but who want to live in the UK and see a Parent of a Child Visa as the best means to do so.
Criteria For a Parent of a Child Visa
To understand if your ex-partner’s reason for wanting contact with their child is visa-motivated you need to understand the basic eligibility criteria for a Parent of a Child Visa.
The Parent of a Child Visa criteria are:
- The child is under the age of 18 and living in the UK
- The child is either a British or Irish citizen, settled in the UK with Indefinite Leave to Remain or in the UK with settled status or pre-settled status under the EU Settlement Scheme. If the child doesn’t meet any of these criteria but the visa applicant is applying for leave to remain as a parent of a child from within the UK then they may qualify if the child has lived in the UK continuously for seven years and the visa applicant can satisfy the Home Office that it would not be reasonable for the child to leave the UK
- The applicant for the Parent of a Child Visa either has sole parental responsibility for the child or the parent or carer with whom the child normally lives is a British or Irish Citizen in the UK, settled in the UK, or in the UK with pre-settled status and the visa applicant has direct access to the child, either by agreement or under a child arrangement order
- The visa applicant takes and intends to continue to take an active role in the child’s upbringing
- The visa applicant satisfies the English language requirement and accommodation requirements and won't need to access public funds
Parents Who Can Apply For a Parent of a Child Visa
In a Parent of a Child Visa application, a parent includes:
- An unmarried parent
- The stepfather or mother of the child if the child’s biological father or mother has passed away
- An adoptive parent provided the adoption is recognised
- A person to whom there has been a genuine transfer of parental responsibility because of the original parent/s’ inability to look after the child – this is provided the child was born in the UK but is not a British Citizen
For Parent of a Child Visa applications, the visa applicant cannot be in an ongoing partner relationship with you.
The visa applicant will need sole parental responsibility or shared parental responsibility to apply for the visa.
In a shared parental responsibility situation, you can't be in a relationship with the other parent and you must have either British or Irish citizenship, Indefinite Leave to Remain or pre or settled status under the EU Settlement Scheme.
Direct Access
The immigration rules say that the parent applying for a Parent of a Child Visa after a relationship breakdown must be able to show that:
- They have custody or shared or equal custody of a child in the UK (by agreement or child arrangement order) and
- They are taking and continue to take an active part in the child’s life and
- It is in the child’s best interests for the visa applicant to remain in the UK
What Happens if Your Ex-partner Gets a Parent of a Child Visa
If your ex is granted a Parent of a Child Visa the visa will last for 30 or 33 months and your ex-partner can:
- Work in the UK
- Settle in the UK and apply for Indefinite Leave to Remain after they meetthe five-year residence requirement
What Happens if Your Ex-partner Does Not Get a Parent of a Child Visa
If your former spouse or partner has their Parent of a Child Visa application refused, they can appeal the decision. They may also have a human rights claim if they can show:
- They have a child in the UK who is a British or Irish citizen
- The child is in the UK and has lived in the UK for at least 7 years and it would be unreasonable for them to leave the UK
- It would otherwise breach human rights to prevent the applicant from coming to the UK on a Parent of a Child Visa or to make them leave the UK
If your ex-partner can't get a visa to stay in the UK then they can ask the English family court for an order that your child accompanies them to live overseas or they can ask for a contact order to allow them ongoing contact, including contact overseas in their home country. You can oppose either type of application. You can also ask the court to make a prohibited steps order to stop your child from being taken out of England and Wales.
Legal Advice For International Families
If you are part of an international family there may be both family law and immigration law issues at play in a child arrangement order application. Our specialist Family Law Solicitors can advise you with the support and experience of our immigration law team.
Online and London Family Law Solicitors
For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
Our lawyers speak Arabic, Armenian, Farsi, French/Mauritian Creole, Spanish, Tamil Tagalog/Ilonggo, Urdu/Punjabi.
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