Children and Divorce: Understanding Custody and Parental Rights and Responsibility in Scotland
When going through a Divorce or Separation, one of the most challenging aspects for parents is determining the arrangements for Child Custody. In Scotland, there are specific laws and regulations in place to guide parents in making these decisions. It is crucial to understand the intricacies of Parental Rights and Responsibilities, Residence Orders, Contact Orders, and other relevant factors.
Parental Responsibility and Parental Rights
Parental Responsibility and Parental Rights are a fundamental concept in Scottish Family Law. They encompass the rights and responsibilities that parents have towards their children. This includes ensuring their well-being, determining where a child should live, what contact they should have with other family members and making important decisions regarding their upbringing and education. In Scotland, mothers automatically have Parental Responsibility and Parental Rights. However, fathers can acquire Parental Responsibility and Parental Rights if they were married to the birth mother at the time of conception, or at any time thereafter, or are named on the child's birth certificate but note this only applies after 4th May 2006.
It's important to note that Parental Responsibility and Parental Rights do not cease upon Divorce or Separation. If you are a father who wishes to obtain Parental Responsibility and Parental Rights and the other parent agrees, you can use a written Parental Responsibility Agreement. This agreement needs to be signed, witnessed, and registered in the Books of Council and Session. If the other parent does not agree, you can apply to the Sheriff Court to be granted Parental Responsibility and Parental Rights.
Informal Agreements and Mediation
In many cases, parents can come to their own arrangements regarding Child Custody in Scotland and Parental Responsibility and Parental Rights without the need for court intervention. These informal agreements can be effective in maintaining a cooperative and amicable co-parenting relationship. However, it's important to note that an informal agreement reached between parents cannot be legally enforced by the court.
If you encounter difficulties reaching an agreement, mediation or Collaborative Family Law can be helpful in overcoming obstacles. Mediation involves a neutral third party mediator who facilitates discussions between parents to help them reach a mutually acceptable resolution.
Collaborative Family Law is a process where both parents and their respective solicitors work together to reach an agreement without going to court.
Residence Orders: Determining Living Arrangements
In situations where divorcing parents cannot reach an agreement on the custody arrangements for their children, the court may need to intervene. The court can issue a Residence Order to determine with whom the child will live. A residence order can be granted to one parent, both parents, and even a third party such as a grandparent.
When a Residence Order is in place, it can be further supported through granting a Contact Order, which outlines the amount of time the child will spend with the parent who doesn’t have residence. It's important to note that the court considers the child's best interests as the paramount consideration when making decisions regarding a Residence Order or Contact Order
Grandparents' Rights and Residence Orders
In some cases, a Residence Order may be granted in favour of a grandparent. This means that the child will live, or continue to live, with the grandparent. Alongside the Residence Order, the grandparent can also be given parental responsibility and parental rights for the duration of the order. This recognition of grandparents' rights can be crucial in ensuring the stability and well-being of the child, particularly in cases where the parents are unable to fulfil their parental responsibilities adequately.
Contact Orders: Maintaining Relationships
While parents are encouraged to make their own arrangements for contact with their children following a Divorce or Separation, there are instances where the court may need to intervene. A Contact Order can be issued by the court when parents cannot agree on the terms of contact, or when concerns exist regarding a parent's ability to have contact with the child (such as instances of domestic violence).
A Contact Order specifies the type and frequency of contact a parent can have with the child. This can include visitations, telephone calls, video calls via platforms like Skype, or even contact through letters. The order may also outline the locations for visitation, the time of the visits, and arrangements for pick-up and drop-off. Contact Orders can also be made to allow a child to have contact with other relatives.
Interdicts: Prohibiting Harmful Conduct
In some cases, a divorcing or separating parent may need to apply for an Interdict to prohibit or restrict certain conduct by the other parent towards the children. An Interdict can prevent actions that breach a parent's legal rights or protect the child from potential harm. It can prohibit the other party from entering the matrimonial home, or where necessary, an Exclusion Order can be applied for to remove a spouse or civil partner from the matrimonial home. An Interdict can also prevent attendance at the parent's workplace, or schools attended by the children.
Specific Issue Orders: Resolving Disputes
When divorcing/separating parents are unable to reach an agreement on specific issues relating to Parental Responsibility or Parental Rights, they can apply for a Specific Issue Order. This order allows the court to decide on a particular matter that the parents cannot agree upon. Examples of specific issues include deciding which school the child should attend, determining whether a parent can take the child abroad on holiday, or addressing a parent's wish to relocate with the child.
Maintenance Payments: Financial Support
Divorcing parents are typically expected to make their own arrangements regarding the financial support of their children. This includes maintenance payments to ensure the child's needs are met. However, if parents are unable to agree on the amount or terms of maintenance, the Child Maintenance Service can assist. The Child Maintenance Service will calculate what one parent is due to pay to the other and take direct action if a parent does not pay. They can also offer support with disagreements on parentage or help to find the non-paying parent if their location is unknown. If the parent expected to pay Child Maintenance is out with the jurisdiction of the UK, our team of specialist Family Solicitors can provide legal support and guidance on how to progress by making an application for maintenance to the court.
Maintenance payments are determined based on factors such as the income and financial circumstances of the paying parent, the needs of the child, how many nights the child resides with the paying parent, and any other relevant considerations. It's important to note that maintenance payments can be adjusted as circumstances change, such as changes in income or the child's needs. For additional support on understanding the amount of Child Maintenance Payments you are entitled to, you can use the CMS online calculator.
Navigating Child Custody Arrangements and Parental Rights and Parental Rights can be complex and emotionally challenging for parents undergoing a Divorce or Separation. Understanding the legal framework, options for resolution, and the best interest of the child is essential.