Duthie Ward Solicitors, Aberdeen Scotland
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Children

CHILDREN AND SEPARATION

Introduction
What are my parental responsibilities?
What are my parental rights?
How do we reach agreement?
What if I am the father, but not married to the mother?
What can the court do?
How are the child’s views ascertained
Do the children automatically go to the mother?
The children will be living with the other parent – how much contact can I expect?
Who is responsible for maintaining them?

Introduction

Parents who separate have to think carefully about the arrangements they make for their children. It is best for both you and the children if you can reach agreement between yourselves about where the children will live and the amount of time they will spend with each parent. In fact, the law recognises that parents are best placed to make these arrangements and the court will only interfere and make any orders as a last resort.

Married couples have equal parental rights and parental responsibilities in respect of their children. These rights and responsibilities are defined by law.

Richard Ward


What are my parental responsibilities?

These are set out in the Children (Scotland) Act 1995 and are as follows:–

  • to safeguard and promote the child’s health, development and welfare;
  •  to provide, in a manner appropriate to the stage of development of the child, direction and guidance;
  •  if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and
  •  to act as the child’s legal representative.

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 responsibilities.

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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.

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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.

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42 Carden Place, Aberdeen, AB10 1UP, Scotland
Tel: 01224 621622 Fax: 01224 621623 e-mail: info@duthieward.co.uk