I have a question to ask about the position re child maintenance. I've looked online for advice but no joy and wondered if anyone here has any 'answers' or smiliar experiences. My husband has 3 children from his first marriage - he has been divorced for around 5/6 years. He is working towards a clean break re spousal maintenance but has continued to pay monthly child maintenance at approx £1,200 per child, per month - plus school fees etc. The children are 12,14,17 - just for background. The 14 year old has a very turbulent relationship with his mother (who has a diagnosis of bipolar affective disorder) and has decided since Sept this year to live with us. We live approx 5 miles from his mother. This was sprung upon us suddenly and initially at her demand that he not return from the usual alternate weekend contact. He has seen her on three relatively short occasions since then. My husband has deducted the £1,200 per month from her usual monthly payment on the basis that we are now looking after him. She is demanding the full payment on the basis that he is living with us temporarily and only if my husband enters into a permanent agreement will she consider a reduction in the amount payable for this child. My husband is ignoring her at the moment - we are still recovering from the significant legal costs of acheiving a clean break settlement earlier this year - and he does not want to go back to his solicitor to chargable advice at this stage. His view is that if it ends up in court, then so be it and he'll represent himself. She is very litigious (both are ex barristers) and although I am happy to look after my step son (inevitably it is me who carries out this role) I cannot bear the idea of more legal and court proceedings. Any help ...

To start with, lots of praise to you for taking on your stepson so readily and with so little notice! Stepmothers have a bad press and need all the help and praise they can get.

I'm sure someone legal will correct me if I'm wrong, but it may depend on whether all the child maintenance is the subject of a court order or just the extra bits, such as the school fees. If it's the former, you may have to go back to court, though as an ex-barrister I would have thought that your husband could probably cope with representing himself with a bit of help from a specialist. Though I suppose (as a layperson) that it may depend on how the order is worded: it may be possible to read 'per child' as 'per child living with the mother'.

On the other hand, it may be that what he's paying is the CSA rate plus the school fees and any related items. In that case, he could reasonably pay the CSA rate for the two remaining children - it is relatively easy to work out from the maintenance calculator on their website - plus all the extras for them that he is paying already. Presumably these fall to him for your stepson in any case.

He is clearly a high earner, so his income might be beyond the CSA limits, in which case I am not sure what he should do. The CSA helpline is usually pretty helpful so you could try ringing them and explaining the situation.

I would have thought, in any case, that your husband's ex will be advised that it will not be worth going to court. Your stepson has already been with you for over two months and by the time she gets a court date it will be well established that he is living with you, so she won't have a leg to stand on. Could he just offer to enter a permanent agreement, as she is demanding, that varies the maintenance accordingly? Your stepson is old enough to be consulted about that, and if he wants to stay with you, then why not just make it a formal arrangement? Or, of course, you could do what you are doing at the moment and just ignore her.

Best wishes,
Sadie

Thanks for the praise - not easy steparenting but the more you put in etc... and my children are stepchildren and so was I. Guess the all round experience helps.

The child maintenance payments are part of the court order. The amount of £1,200 per child per month includes an uplift to cover extras on the school bills (my husband pays the tuition only now as there were constant disputes about the extras bill). In fact this child does not go to private school anymore so it doesn't apply to him as such - although when he came in Sept I had to get more school uniform, equipment etc and we pay for school travel, food, trips etc for him. I do not recall the child maintenance specifically related to the child living with the mother - I'd have though that was a given in terms of the overall maintenance agreement. Re the CSA - to be honest my own experiences with them were so useless and bleak that I can't face contacting them again for information. I am just so glad I didn't give up my own career in respect of that one!

I guess if he wants to stay with us beyond and into the New Year then we should consider next steps, in the meantime though my husband will not reinstate the payment or pay the arrears and I can only support him in that as it seems fair and reasonable to me. I have two boys myself (one adult in his 20s now though) and feel that if we went along with his mothers demand that a formal order made entered into then it would be very damaging for him emotionally. We are not stopping him from returning to her and as far as we are aware she isn't demanding for him to return, then there isn't any need for it right now.

I thought child maintenance related to the day to day costs of providing for a child (she was already awarded a 6 bed house mortgage free)and now those day to day costs are incurred by us, then why would she still be en­title­d to all or part of child maintenance? She already claims child tax credit and free school meals etc for him (and for those that don't know, there are many loopholes in the benefits system including one which allows for the exclusion of maintenance payments at this level (approx 7k per month total) in the calculation of what constitutes income. This amount should cover any incidental costs relating to keeping his bedroom available to him and looking after him at weekends/holidays etc.

Anyway, off to work now ...

If the child is living with you, and you are happy for that to continue, you could apply for child benefits. This would make your husband 'PWC' and he would be en­title­d to receive child support payments from his ex-wife, and cs is included in that calculation.

The real issue to me is that somebody wants this kid, 14 is a hard time and being bounced back and forth, or being allowed to play the game of playing one parent off the other is not a good thing.

I feel the approach is correct, if 14 yr old is not lving with mom, mom can't expect the money. But, if it is only temporary expect a claim for past due.

When the original court order predates March/April 2003 or the NRP's income exceeds the CSA capped amount the courts have jurisdiction so CB the CSA are irrelevant. Usually the terms of the order are something along the lines periodic payments of £xx to be paid monthly in favour of the parent for the benefit of [named] children until the children reach 18 or cease full time tertiary education. This stands and is enforceable unless the court order is varied.

If the son is to stay with you it makes sense to negotiate and agree a variation by consent if at all possible. Otherwise H is liable for arrears. In Ellis v Ellis [2005] EWCA Civ 853 . the Court of Appeal held the NRP should have applied to the court for a variation rather than take the law into his own hands and not comply with an order.

There is absolutely no doubt that we want the child to remain living with us. He knows this and is happy and secure in our family enivornment. We have tried to encourage a positive contact arrangement with his mother even if on a flexible basis so that he does not feel excluded. She refuses to co-operate with this unless it is entirely on her terms. She makes him aware of this and as a result he has only visited her on 3 occasions in 3 months - we live 10 minutes drive from her house. It is a very difficult and complicated situation made worse by the fact that the only attempt his mother has made to discuss the situation via letter was to demand full maintenance for her son. I feel for him greatly - I have a son of a similar age and another in his early 20s.

Thanks for the comments - I have advised my husband to apply for a variation asap - if nothing else to protect himself.

I'm cynical but ­base­d on past experience, she will probably be en­title­d to the full maintenance regardless of him living with us. And she'll probably demand another increase, interest etc.

Hi there

She will not get maintenance for a child that doesnt live with her. But as one has voted with his feet there is a risk that the others may follow so I suggest to avoid further possible litigation in the future your hubby applies for the existing orders to be varied to state "while the child resides with wife".

This is a very simple application, and as a former barrister there is no reason why he shouldnt self rep. A good basic knowledge book is Roger Bird's "Ancillary Relief Handbook" which can be purchased via the Jordans website for about £45.

Amanda