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What Rights Does A Father Have To See His Child In Scotland?

This blog will explain what rights a father has to see his child according to Scots Law.

Under Scots Law, legislation does not provide any concrete rules on child custody. The specifics will be decided on a case by case basis between the parents themselves or, in the case of an unresolved dispute, by a Court in the child's best interests. No decisions are made in terms of child custody/primary residence or contact purely in regard to whether you are the legal father or mother.

In summary, as a father, you may have a right to see your child assuming you have legal parental rights and responsibilities.

Do I have Parental Rights and Responsibilities as a Father?

Whether a man has parental rights and responsibilities as a father is, naturally, a bit more complicated than working out who the mother is due to the simple fact that the birthing process does not objectively confirm who the biological father is, as it does with the mother.

Under Scots Law, certain presumptions are made to determine whether a biological father has parental rights and responsibilities and distinctions are made between married and unmarried men.

It may be helpful to think of legal fatherhood as an opt-out system for married men and an opt-in system for unmarried men:

·       If you were married to or in a civil partnership with the mother at the time of conception (regardless of later separation).
·       If you were married to or in a civil partnership with the child's mother after conception (regardless of later separation).
·       If you jointly registered the child's birth, meaning your name is on the birth certificate.
·       If you are given parental rights and responsibilities by the child's mother through registered agreement, assuming she has parental rights and responsibilities.
·       If you are granted parental rights and responsibilities by a Court.

It should be noted that these are simply legal presumptions which can be rebutted with evidence in a Court of law.

Father holding child looking out a window

Does A Separation Affect My Rights as a Father?

Under Scots Law, there are few hard and fast rules regarding where the child should live or what contact time each parent should have. It only dictates that each holder of parental rights and responsibilities have a duty to work out an arrangement that is in the best interests of the child.

In the vast majority of cases, these arrangements are made outside of Court. Two of the leading causes of dispute are raised when deciding:

·       Where the child should live;
·       When the non-resident parent can see the child.

However, where parents cannot agree, the Court will need to intervene. The Children (Scotland) Act 1995 provides a broad range of powers such as:
·       Removing or granting parental rights and responsibilities
·       Granting a Residence Order, regulating where the child lives
·       Granting a Contact Order, regulating contact arrangements
·       Specific Issue Order, stating that a parental rights and responsibilities holder has to do something specific such as send the child to a particular school or church etc.

Whether you are the father or not is theoretically irrelevant in regards to the Court's decision. Instead, the Court's "paramount consideration" is the welfare of the concerned child or children.

The Court will take into consideration:
·       The aptitude of each parent to look after the child's physical welfare.
·       The wealth of each parent
·       The physical ability of each parent to provide care (whoever has been the main carer in the past is likely to be granted primary residence. This is most often, but not always, the mother)
·       Previous and ongoing behaviour of either party (abuse, antisocial behaviour, drug and alcohol issues and so on)

The Court's priority, then, can be summarised as seeking to maintain a stable and nurturing environment for each child involved, as well as maintaining the status quo. While the child's opinion can be taken into account, this is entirely dependant on the age and maturity of the child involved.

The role of a child’s opinion can vary from case to case. Different degrees of weight can be attributed to a child’s view depending on age, maturity, and the background circumstances of the case. In short, the role of the child's opinion, while important, is entirely contextual.

As can be seen, numerous factors go towards dictating how cooperation or dispute over child residence and contact will go. If the Court needs to intervene, they will not do so based on who is the father or mother, or what is best for each parent, but rather all of the factors considered above with child welfare as the priority.

Disputes and negotiations regarding child residence and contact following a divorce or separation can be an incredibly stressful time with a network of countless factors to consider. Having sound legal advice and guidance behind you will help to make sure you receive the best possible outcome for your situation and give you valuable peace of mind.

To find out what rights you have in regard to seeing your child speak to one of our solicitors today.

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