What are my parental rights?
- to have the child living with you or otherwise to regulate
the child’s residence;
- to control, direct or guide, in a manner appropriate to the
stage of development of the child, the child’s upbringing;
- if the child is not living with you, to maintain personal relations
and direct contact with the child on a regular basis; and
- to act as the child’s legal representative.
You will see that there is some overlap between the parental responsibilities
and parental rights. This is because the law provides that
the rights are only there to enable you to fulfil your parental
Back to top
How do we reach agreement?
If you cannot agree where your children are to live, or what contact
they should have with the parent with whom they are not living,
after your separation or divorce, the following options are available to you:-
- You can try to reach agreement by negotiation through your solicitors.
- You can get help from a mediator -- see Family Mediation
- Collaborative Family Law
- You can apply to the Court. A sheriff will decide,
after hearing arguments from both sides, who the children should
live with and how much contact they should have with the other parent.
Whichever option you choose, you must always consider first and
foremost what is in the best interests of their children. If the
Court is asked to make a decision about the children's living and
care arrangements, its paramount consideration will be the welfare
of the children. The law also now requires that both parents
and the courts must have regard to the views of the children themselves,
particularly if they are 12 years old or more.
What if I am the father, but not married to the mother?
A father who is not married to the mother of his children will
only have parental rights or responsibilities if he was registered
as the child’s father on or after 4th May 2006. Otherwise
these rights and responsibilities can be acquired either by written
agreement with the mother, or by applying to the sheriff court.
What can the court do?
The Court has very wide powers, but will only exercise them having
regard to the following three important principles: –
- It will only make an order if it is better to do so than not
- It will regard the welfare of the child as the paramount consideration
- It must, so far as practicable, have regard to the views
of the child himself – this applies to children of all ages, but there is a presumption that children
of 12 years and over have sufficient maturity to be able to express a view
The two main orders that the Court can make are residence
orders and contact orders. A residence order
usually requires the child to live with one parent, but can provide
for the child to live with each parent at different times. A
contact order (what used to be called access) is made where the
child has his home with one parent and sees the other on a regular
basis. The concept of custody has now disappeared
from our law.
Back to top
How are the child’s views ascertained?
Unless the child is very young, he will have to be notified of
any orders that either parent is asking the Court to make. He
will receive a form explaining what these orders are and inviting
him to respond in writing. He can obtain help with this
from a friend, relative or teacher, and can even seek independent
legal advice. The child is not obliged to express a view,
but, if he wishes to do so, the sheriff must give him the opportunity. There
are a number of ways in which this can be done – sometimes
the sheriff wishes to speak to the child himself in private.
Do the children automatically go to the mother?
No. Many parents assume that the mother of a child will automatically
have full care of that child. Whether the parents are married
or not, that is not necessarily so. The Court has to give consideration
as ever to what is in the best interests of the children. This
may mean that a father, whether he is married to the mother or
not, can have the children living with him, or can have contact
with them or share the children's care with their mother.
The children will be living with the other parent – how
much contact can I expect?
There are no hard and fast rules. In general, it is considered
best for children if they have both regular and frequent contact
with the parent with whom they are not living, especially if they
are young. Unless the children are very young, overnight
contact is usually permitted. It is also common for there
to be longer periods of residential contact doing school holidays.
Who is responsible for maintaining them?
Both parents are responsible for maintaining their children. This
includes fathers who do not have parental rights and parental responsibilities
as described above. See Maintenance for Children
The legal information contained in this site is not comprehensive,
nor should it be treated as a substitute for specific legal advice
on any individual situation.
Back to top