# Divorce after pursuing a dream...



## Cherokee (Oct 8, 2010)

Probably those of you who hangout on the forum a lot have heard similar stories. 
But, here's mine and I have a question. 
- I am from NL
- I have a house in NL
- I rent a house in UK
- I work in UK since January 2012
- I am married to a Ukrainian woman since April 2013
- She moved overhere in summer 2013
- We have a baby since June 2014
- She does not work
- I lost my job on the 6th of march
- The day I lost my job and told my wife, she said "your problem" and left taking the kids(she has one son from a previous marriage), and said she would divorce me.
- I moved back to NL 2 weeks later, and she said(sms) that she would want to get back in the UK house
- Last week i received an epistel of a lawyer she has found(through local council support etc), accusing me of god knows what. And including something called a residence order and non-molestation order. I cannot enter the house anymore, see the kids, etc.

Now, I would like to understand. 
Since we are married in Ukraine, and she is non-EEA living in UK less than 2 years, would divorce proceedings be better in UK or in Ukraine? I find it difficult to understand how someone can apply for divorce in UK when not married in UK, lived there on my EEA status, probably needs to go back to Ukraine anyway as her residence status will drop after divorce and i move back to NL.

Someone can shine a light?

Thanks,
Ronald


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## HKG3 (Jan 11, 2015)

Ronald

Sorry to hear what happened.

Citizen Advice Bureau's link on ending a marriage below gives out very details information on matters like finance and access to children- 

Citizens Advice - Ending a marriage 

As your wife appears to have UK legal representation, you may wish to consider getting the services of a UK lawyer.

Since you move back to the Netherlands and no longer exercising EU treaty rights in the UK, you should be looking into telling the Home Office that your wife no longer qualify to stay in the UK based on you exercising EU treaty right. Correct me if I am wrong, but your wife can still stay in the UK with your child (the one born in June 2014 and I guess with Dutch Citizenship?) based on the _Chen_ cases - 

https://www.gov.uk/government/publications/derivative-rights-of-residence-chen-cases-revised


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## Cherokee (Oct 8, 2010)

Thanks. Lemme have a look. 
Had a hearing last tuesday. Judge turned around completely.
Deleted the orders.
Now she needs to move out of the house by end of July.
Still its a mess.


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## MacUK (Jul 3, 2012)

I really don't know if she can retain her right to reside in the UK as a mother if an EU child, however you should inform the Home Office that your marriage has broken down and you are no longer exercising treaty rights in the UK. 
Based on your marriage, which is non existent, she must leave the UK. But, since there's a child involved, there might be different rules. Get a lawyer and stay informed. Good luck.


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## Cherokee (Oct 8, 2010)

Yes, i will prepare a letter to the home office covering that. I know she has been getting advice from an institute called 'the Aire Centre', and they said that if i would no longer reside in the UK on the day the divorce is final, and it is within 3 years of her moving to. The UK, she'd have to go back. With the children. 

I feel quite torn about all this. 
On one hand i prefer her to stay in the UK with our baby. Because from NL its obviously easier to meet the baby regularly. On the other hand, with all the lying and cheating she has done, i also feel an element of revenge and wish she'd have to return. 

It is just so sad that someone can so completely be selfish and egocentric. I guess i was naive about the entire relationship and her goals. 

Thanks for the support!


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## MacUK (Jul 3, 2012)

Just had a read through the Chen cases documents. From what I can gather, she has a right to stay in the UK as a primary carer of an EU child, that's a derivative right, but her other child would also get the right to stay in the UK, because of their sibling. The catch is, she has to be self sufficient in order to do this, so she cannot claim any benefits. However, if she accused you of domestic violence, she would probably get a lot more than just benefits. Just stating the obvious here. I suppose it is better for your child to remain in the EU, so there you go. It's so sad that you're in this situation but you really should get as much info as possible and obviously with your child in mind.


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## Cherokee (Oct 8, 2010)

Yes that's how i read it as well.
The judge annulled both orders(non-molestation and occupancy) laat tuesday after hearing my side of things(she was especially incredules about my wife dropping me on the same day as i lost my job). So i think she has no more ground for any further pursuits based on domestic violence(even though she keeps talking about it as if it actually happened). She is seeking benefits now, as she needs to have benefits to be able to get FOC legal support(which she needs to file for divorce). 

So if i understand the Chen case, she will not receive right to stay if she has benefits. It is quite a catch-22 for her. 

It is all so sad really.
Appreciate your aupport!


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## HKG3 (Jan 11, 2015)

Cherokee said:


> Yes that's how i read it as well.
> The judge annulled both orders(non-molestation and occupancy) laat tuesday after hearing my side of things(she was especially incredules about my wife dropping me on the same day as i lost my job). So i think she has no more ground for any further pursuits based on domestic violence(even though she keeps talking about it as if it actually happened). She is seeking benefits now, as she needs to have benefits to be able to get FOC legal support(which she needs to file for divorce).
> 
> So if i understand the Chen case, she will not receive right to stay if she has benefits. It is quite a catch-22 for her.
> ...


Ronald - see link below

https://www.gov.uk/report-benefit-fraud


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## Cherokee (Oct 8, 2010)

Lemme have a look at the link.

As i have been reading myself in all this stuff, there's also the Ibrahim and Texiera cases. They seem more applicable to her options. Long story but she could apply for a derivative right of residence based on the fact her son is at a UK 2ndary school and should not be witheld from that by the primary carer's need to leave the country. There are 2 considerations: it should be established that her son, is also accepted as being my son(even though he is my step-son), and as she is the primary carer, if there's another carer in the UK(me), who could take over as primary carer of the son, it will be refused.

Anyway bound to be complicated!


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## Zara2013 (Jul 18, 2013)

Wish you all the best and good luck


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## Cherokee (Oct 8, 2010)

Thanks! I need it. What a mess.


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## skyf (Mar 26, 2015)

There is a lot of emotion and you are very hurt and although there is anger towards her, try to rise above that, as you wish the best for the children, have you considered joint custody?

Is it too late for mediation??


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## salix (Apr 27, 2014)

Have you considered applying for custody? I'm not sure about the custody laws here, but in the US both parents have equal rights to custody and the judge will place the child with the parent that can offer the most stable home. It has come a long way from where the mother was automatically given custody.


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## skyf (Mar 26, 2015)

Joint custody is the best outcome for the child as it makes sure both parents are still involved in the child's life and access is agreed. Mum usually gets care and control ( who the child lives with).
Joint Custody will only work and be confirmed by the Court providing both parents agree, otherwise if one fights for control acrimony becomes rife and the Child(ren) suffer....not good.

Once the raw emotions have subsided, it is to be hoped this couple can resolve their differences....life is too short!


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## salix (Apr 27, 2014)

Joint custody is fine, but when the parents live in separate countries (or states), someone needs to have primary custodial care. Otherwise it is a logistics nightmare for making even simple decisions (permission slips, routine medical care, etc.).

And yes, I'm a firm believer in maintaining a friendly relationship, better for everyone.


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## skyf (Mar 26, 2015)

Joint Custody orders will confer on one parent care and control but the other has rights of access and decision making. 
Yes, living in different juresdictions can cause difficulties, however if the wife is suing for Divorce the husband should ask the Court to make an order of exclusive residency. Afraid this case is not so straightforward as there are other issues to be considered....the wife's Right to remain in the UK, one child born in the UK which confers Rights, to name 2.
It is a very complex situation and hopefully affected Party's will remain sane.


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## Cherokee (Oct 8, 2010)

Hi Skyf, salix, thanks both for your replies. Sorry bit late to respond again.


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## Cherokee (Oct 8, 2010)

Joint custody....
Bit more background:
- i have 2 adopted children(from China), now 13 and 15, living in NL in my house there
- i have a so-called birds-nesting arrangement with my Dutch ex-wife. So the kids live in my house and my ex and me coma and go. When i am in NL(few weekends a month), i stay with the kids in the house, rest of the time my ex stays with them(in my house)
- so, i know a about a proper divorce where the priority is what is best for the kids. 
- i asked her(my Ukaine wife) if i could please see my baby(take her to NL for a weekend) on April 16. So far no answer. 

Yes i want joint custody. But for now is a bit tough as i dont have a place to sleep in the UK, at least until end of July. I dont think any joint custody application is realistic if i dont live in the UK.

My thinking now:
- stay in NL and apply for divorce(or wait for her to do so)
- advise HO that i am no longer exercising treaty rights(Joppa, Jrge, appreciate your opinion on this)
- wait for divorce to be finalized
- wait for her to vacate the house(either she finds something cheaper, or HO tells her to go back to Ukraine
- return to UK and find a new job
- if she is still in UK, make application for joint custody
- inform HO again about finalised divorce and my new residence status
- assuming she will then for sure need to leave the country( she will fail step 6 of the Texeira/Ibrahim process), try and get the baby(and possibly my step-son,if he wishes)
- starta new life (again)!!


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## Cherokee (Oct 8, 2010)

Skyf, what is an oder of exclusive residency?


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## skyf (Mar 26, 2015)

The parent who is granted Care and Control is required to domicile in a specified location and has to obtain consent of either the other parent or The Court to move location. For instance Holidays etc.

Joint Custody can involve a number of different issues regarding the Wellbeing of Children, not necessarily shared living arrangements, but particularly decisions on general upbringing and welfare.

Reading the further information of your domestic responsibilities and obligations, your circumstances are more complex than at first thought and a Court will need to be convinced you are able to discharge any Obligation seen fit to Order, in respect of your UK Children.
It is to be hoped you have engaged a Lawyer who is well versed in Family/Matrimonial matters as this case has many conflicting issues which could drag on for sometime yet.


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## Cherokee (Oct 8, 2010)

Hi Skyf, could you elaborate on "discharge on obligation to see fit to Order'?


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## skyf (Mar 26, 2015)

When a Court is asked to make an Order which involves the Wellbeing of Children, it will require convincing evidence that 'A' Party or 'B' Party are well equipped to carry out what is being requested. This will usually require Housing and Welfare Reports , which and because it involves vulnerable people ( Children) can take some time especially if Divorcing Parents do not agree.

The Court will always have the Welfare of Children as paramount importance when considering their current and future needs.

It is always easier all round if Divorcing Parents can find common ground putting acrimony to one side, remembering Children do not understand the disagreements between Mum and Dad. They probably love you both equally. Keep this in mind whatever you do!


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## Cherokee (Oct 8, 2010)

Hi Skyf,
I understand that the kid's welfare is paramount.
I tried to explain(actuallly was more like begging) my wife that it is much better to talk and try to come to an amicable arrangement, better for the children, better for her and better for me. She flat out refuses any contact directly with me, and insists all contact should go through sollicors. It is crazy and absolutely unpractical. Somehow i am the enemy now. Like i said earlier, also her best friends think she has lost her mind. She is setting her son(my step-son) up against me(he deleted my Skype contact from his list), 

I don't really know what to do, and what is best? I mean i can hardly just keep sitting here and do nothing? The more time passes and i have not seen my baby(and her son), the more difficult any reunion will become.


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## Cherokee (Oct 8, 2010)

I was also thinking, i mean, it woul really be in her interest to sperate amicably? I mean, without my help she could be kicked out of the UK based on the whole EEA thing?
I don't understand what has become of her. It makes no sense.


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## skyf (Mar 26, 2015)

The distance between you is physically and asperationally, large. Many Divorcing/Separated Parents find themselves in a similar situation and will use children as a weapon...not good.
Are there mutual contacts who could forge some understanding between you both?

Somehow you have to talk, which may take time and patience will be required.
If she does have health problems, that needs to be considered in how she is approached.

Some questions which you do need to discover the answers are, how is she managing to live now? How is she financed? Does she have someone New in her life etc?

Not sure it is wise to report her to HO!! You may have Legal Obligations to do so...maybe there are others more knowledgeable here who will have the answer?


Lawyers are expensive and these cases are their bread and butter, but from what you say it seems you will at least need their Advice


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## Cherokee (Oct 8, 2010)

Hi Skyf,

Tried to approach her through her best friend(also from Ukraine, living in London too), asking to try and arrange meet/talk.
She reacted by demanding to see my correspondence, as she would want to use it to go to the police and claim i was terrorising her friends...

Health is fine(physically at least).

She is applying now for every benefit she can get, not working yet though she may try.
And i pay the house(1500/month) plus i (voluntarily) transfer 400/month to make sure they have enough.

I am not sure she can legally work once HO knows about separation, and me not excersizing treaty rights etc.

Like i said earlier, it's a real mess,


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## skyf (Mar 26, 2015)

If correspondence with her friend is Friendly and not to intrusive, and certainly not threatening, then how could she use it against you?

Your anxiety comes across loud and clear, however it does not help you. Easy for me to say, but if you can keep yourself busy in other areas you will see things in a better and a pragmatic way through will emerge.

Remember she will have serious concerns regarding her future once your relationship is totally severed.


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## Cherokee (Oct 8, 2010)

Yes of course you are right. I am not nervous about her using any correspondence at all, because i have nothing to hide. But it was just intended to show in what kind of mental state she is.

And true as well. Need to keep my head straight about all this, need to prevent this becoming an obsession. That's what i keep saying to myself too...


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## skyf (Mar 26, 2015)

Your last sentence answers the problem which haunts you. Do not allow it to become an obsession and then the clouds of uncertainty will disappear and all will become clear.

Enjoy the day!


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## Joppa (Sep 7, 2009)

I haven't read all the posts, but in case of separating couple with EEA citizen (but not divorced), the non-EEA partner will have continued right of residence provided the EEA partner is in UK exercising treaty rights (a qualified person). With continued right of residence, your partner can work. After 5 years, she can get permanent residence provided you have been in UK for 5 years and been a qualified person throughout.


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## Cherokee (Oct 8, 2010)

Hi Joppa,
I have actually left the UK now and moved back to NL. I have not get informed HO though. 

What will happen then? Can she actually work or get benefits? As far as i can see not?


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## Joppa (Sep 7, 2009)

But not divorced yet?


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## Cherokee (Oct 8, 2010)

No. She has threatened to divorce, and with all that has transpired, i am contemplating as well.


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## Joppa (Sep 7, 2009)

OK. Normally, for non-divorced couples, the EEA citizen partner has to be a qualified person in UK for the non-EEA partner to have continued right of residence. But if the non-EEA partner has an EEA citizen child, like in your case, they can apply for retained right of residence and can work. The one stipulation is that your child attends school (is in education). She can then apply for retained right of residence under regulation 10(4). 
Read https://www.gov.uk/government/uploa...ent_data/file/421235/Retained_Rights_v2_0.pdf
But your child is only a baby, so I'm not sure. Will dig around!


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## Joppa (Sep 7, 2009)

You have only been married since 2013, so it's not long enough for your partner to have retained right of residence despite having an EEA citizen child. So normally she has no longer any right to remain in UK. If you notify Home Office about your separation and your departure from UK, they will normally cancel her residence card and tell her to leave UK. The only ground for her to remain would be on some compassionate or discretionary reasons. How old is her other child and how integrated into UK, such as attending school, having friends etc? It will be a difficult application for her.


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## Cherokee (Oct 8, 2010)

Hi Joppa,
Her other child(non-EEA) is 13 and is attending secondary school since sep-2013. 
As i read this, this is a classic Ibrahim/Teixeira case? Seems to me is her only chance.


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## Joppa (Sep 7, 2009)

What is the older child's status in UK? On a visa? If the child is under EU regulations, she may have a chance under Ibrahim/Teixeira judgment, but usually the child has to be an EEA citizen. Or she may get compassionate right to residence for having a sibling in education to your child.


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## Cherokee (Oct 8, 2010)

Hi Joppa,
I have read a lot about this now. 
He is in UK on family permit(EEA) with my sponsorship too. 
If you look at https://www.gov.uk/government/uploa...3/Derivative_rights_of_residence_v2.0_ext.pdf
It explains Chen and Texeira procedures.
As i read it, devirative rightaccording Chen would be possible based on my baby being NL citizen. But problem is she needs to be self-sufficient (no benefits) and i still need to be excercizing treaty rights on the day of divorce. But that's not going to happen. Texeira is the only option, and all boxes seem to tick? Main question is: will theyconsider her son as my child? I mean, he's been a atep-child of me for only just 2 years?


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## Joppa (Sep 7, 2009)

I am familiar with derivative rights under Chen, Ibrahim and Teixeira.
Yes, they will probably consider him as your child, esp as you have successfully sponsored him for EEA family permit.


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## GUAPACHICA (Jun 30, 2012)

Cherokee said:


> Hi Joppa,
> I have read a lot about this now.
> He is in UK on family permit(EEA) with my sponsorship too.
> If you look at https://www.gov.uk/government/uploa...3/Derivative_rights_of_residence_v2.0_ext.pdf
> ...


Hi - I'm so sorry to hear of your current legal problems.

I used to work with young people in the UK and was regularly in Court or Family Case Conferences when parents were in the processes of separation and/or divorce. I'm not qualified in Law. However, I do recall that Judges would look more kindly on 'wage - earner' parents who did exactly what you are doing - continuing to fund the roof over your family's head and voluntarily providing 'maintenance' funds, alongside! 

Whatever else you may do, until such time as there's a legal resolution of your situation, it's crucial that you continue to support your wife and child/ children, despite her recent inexplicable behaviour - to be the 'responsible' parent in this dreadful scenario! 

If I were you, I'd be seeking legal advice, urgently, on the means of ensuring that she cannot leave the UK for the Ukraine, with your child ( don't believe you could prevent her taking her own Ukrainian son out of the country, just yet)! I'd assume that your chances of a fair legally binding decision on future custody would be much stronger in the UK than if you had to pursue her to the Ukraine and attempt to mount a legal case there, where you would, presumably, have neither the language nor an understanding of the Law! IMO, your best option would be to use every means possible to encourage her to remain in the UK - especially as you wish to return to work there, yourself!

I appreciate your not wanting her to benefit from your short marriage by gaining UK residence, but would you really rather have your own child removed to the Ukraine? I cannot see a British judge giving you sole custody of such a young baby, so, in the case of a shared arrangement, your own access and parental rights would, surely, be much better served in either the UK or the Netherlands( the baby having Dutch nationality).

Good luck - and, as others have said, try to consider the longer term, for the children's sake, rather than seeking revenge by causing your wife to need to leave the country, prior to resolution of this undoubted mess! In future years, your child will be well aware of the role that each of his parents has played in this scenario - he deserves and needs at least one of you to make decisions in his best interests, rather than selfishly, as his mother appears to be doing! 

Far too many fathers lose contact with their children, entirely, as a result of divorce - the custodial parent having caused immense difficulties in access arrangements! I can tell you that the children caught up in such cases never lose their sense of abandonment, whilst their sense of self worth nosedives! Don't ever allow either your wife or circumstances to prevent your having continued and regular contact with your son - for both your sakes! Best wishes.

Regards, GUAPACHICA


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## Cherokee (Oct 8, 2010)

Joppa said:


> I am familiar with derivative rights under Chen, Ibrahim and Teixeira.
> Yes, they will probably consider him as your child, esp as you have successfully sponsored him for EEA family permit.


Hi Joppa,
what about step 6 of the Texeira work instruction?
It says that if there is an alternate carer in the UK(direct family, I assume I'd qualify), as I read it, it would mean she would not pass that test? In other words, her son(my step-son) and my baby, could remain in (alternate) care with me in UK, while she'd have to return to Ukraine? Is my interpretation correct?


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## Cherokee (Oct 8, 2010)

GUAPACHICA said:


> Hi - I'm so sorry to hear of your current legal problems.
> 
> I used to work with young people in the UK and was regularly in Court or Family Case Conferences when parents were in the processes of separation and/or divorce. I'm not qualified in Law. However, I do recall that Judges would look more kindly on 'wage - earner' parents who did exactly what you are doing - continuing to fund the roof over your family's head and voluntarily providing 'maintenance' funds, alongside!
> 
> ...


Thank you for your kind words Guapachica,
actually the situation is such, that as I don't have a job at the moment, I am living off of loans to pay for the house and the money I send weekly. 

Ref the ultimate goal, I agree I'd prefer if the kids stay in the UK. 
What I am trying to understand, is how the immigration legislation ultimately will work in relation to the primary carer legislation? As per my reply to Joppa, as I understand it, if I would be back in the UK by the time the immigration consideration is being processed, I'd qualify as an alternate carer in step 6 of the case procedure for the Texeira rules. In that case, based on the fact that I can provide alternate care(as her son;s step-father), he could remain in the UK and continue his education, and she'd have to leave the country. I understand that a court may prefer that the children(especially a baby) would stay with her, but the immigration regulation is quite specific? 
In other words, what would take priority? 
The courts desire to keep the mother with the children?
Or the immigration regulation statig that when there's alternate care options for the children, she'd have to move back to Ukraine, leaving the children with me(as their father/step-father)?

As you can see from the earlier posts in the thread, I am experienced father, adopted 2 children successfully, have a track record as a good family man(my ex-wife has provided a statement supporting this), while her trackrecord is clearly not such(there are problems with her son(my step-son) at school, he has difficulty building relationships and some other issues I don't want to write down here. Also she has a (proven) record of alcoholic abuse(with the kids present). 

Before I take any decisive steps, I'd like to know how it would all pan out?

Thanks everyone!


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## Joppa (Sep 7, 2009)

Cherokee said:


> Hi Joppa,
> what about step 6 of the Texeira work instruction?
> It says that if there is an alternate carer in the UK(direct family, I assume I'd qualify), as I read it, it would mean she would not pass that test? In other words, her son(my step-son) and my baby, could remain in (alternate) care with me in UK, while she'd have to return to Ukraine? Is my interpretation correct?


But what kind of alternative carer, as she is mother to them both?


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## Cherokee (Oct 8, 2010)

Joppa said:


> But what kind of alternative carer, as she is mother to them both?


I don't know, I am just looking at the definition in the procedure? 
look at Page 68. 
It says:
Alternative care
Where a person has demonstrated that they are a primary carer, you must consider whether refusing and/or removing that primary carer would result in a breach of the relevant person’s rights under European Union (EU) law. In this case, the ‘relevant person’ is the child under the age of 18 years.
You must refuse an application for a derivative residence card if there is another person in the UK who can care for the relevant person. This is because the relevant person could continue to exercise their rights under EU law if the primary carer was required to leave the UK.
You must assess whether there is another person in the UK to care for the relevant person, for example a direct relative or legal guardian. For more information on what is meant by direct relatives and legal guardians, see related link.
Other parents
In all cases where only one parent is applying for a derivative residence card, you must establish the whereabouts and immigration status of the child’s other parent. If this information is not held on file you must ask the applicant to complete a questionnaire. To download the questionnaire, see related link.

I read this as: If i am in the UK, I would qualify as an alternate carer(direct family).


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## Joppa (Sep 7, 2009)

Possibly but she is mother to both whereas you are only father to the baby, and are unlikely to be considered a suitable alternative carer to the older child.


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## Cherokee (Oct 8, 2010)

Hi Joppa,

yes that is true of course. 
But there is a contradiction with this. 
In Step 1 it is concluded that a step-child is to be considered as equal as a biological child in determining if the primary carer has derivative rights of residence. 
It would be contradictive if then in the assessment of primary carer i would not be considered equal as a natural father of the step-child? 

So for step 1 I am the father(he is my son) and when it comes to alternate care, i am not the father? Seems not logical to me.


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## MacUK (Jul 3, 2012)

It's not logical, but the older child is not your biological child, whereas his sibling, your baby, shares the same mother. So for all purposes she is a biological parent to them both, while you're not. That is probably why your stepson could get a derivative right of residence - his sibling. So unless the older child chooses to live with you, I don't see how else you could get custody of them both. I'm not a solicitor, I would probably consider getting some legal help at this point.


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## Cherokee (Oct 8, 2010)

Hi MacUK,

Yes valid points. 
It seems to that it will depend on the interpretation by HO of the terms 'child'(so natural child or also step-child), and alternate carer(will i qualify as alternate carer) to determine the outcome. The entire paragraph about looking for the other parent as an alternate carer(as an option of refusing deverative right of residence) seems to be written with this specificly in mind: if there is an other parent, who has continued right of residence, the primary carer wil not be able to obtain devirative residence rights. The question is of course , how far would they go with this? Will they force a mother of 2 children out of the country, abandoning their children(leaving them with me), based on this interpretation/guidance? Difficilult to imagine but on the other hand, that's clearly how it is written.

In my case, it would obvious be much much better if my wife could come to her senses and seek a more amicable divorce. That way we could work together to make sure she can stay in the country after the divorce. Something which is also in my interest(from a view of retaining contact with the kids), even though it may not be in my interest from a risk-management point of view.


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## Cherokee (Oct 8, 2010)

Hi Joppa, MacUK,
Please have a look at the attached thread in the context of this discussion about alternate care options. 
http://cases.iclr.co.uk/Subscr/search.aspx?path=WLR+Dailies/WLRD+2011/wlrd2014-238


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