Divorce Lawyer Al Gordon Tells It Like It Is

By: Al Gordon Solicitors  29/01/2009
Keywords: Divorce, divorce lawyer, Contact Orders

DIVORCE AND CHILDREN

The law says that married couples share parental rights and responsibilities in relation to their children.  Divorce does not change that.  Couples are expected by the courts to make their own arrangements for children on separation and divorce.  Many couples manage this without ever needing to see a lawyer.  However, if you can’t come to an amicable arrangement, the following information may be useful.

Most parents regard the most important parental right as the right to have children living with them.  This is called the right of residence and a court order in relation to this right is called a Residence Order.  (The concept of residence has replaced the older concept of custody).  It is however possible for the court to make an order for shared residence and many couples manage to operate a shared care arrangement. 

Except in the case of small children, there is no legal presumption and therefore no bias in law in favour of mothers.  It has however been recognised by the courts that small children generally have a greater need for maternal care.

The other important parental right relates to what is now called contact and was previously called access.  This is the right to maintain a relationship with your children.  Again, this is something most couples sort out themselves but if an agreement can’t be reached, then the court can make what’s called a Contact Order to determine exactly when visits between a parent and their children should take place and where.  Such an order can also include conditions about collection and return and the involvement of third parties.  There is no such thing in as a minimal entitlement contact.  Each case is dealt with of its own merits.

Again, despite what you might’ve read in the papers or seen on television, there is absolutely no bias in favour of mothers.  These days the courts will bend over backwards to make sure that any, and stress any, non-resident parent gets to keep in touch with their children.  The biggest obstacles to contact are however, domestic violence and abuse within the family home and sometimes a lengthy prior history of non-involvement.

It’s important to remember that there is no link in Scots Law between the obligation to pay child support and the entitlement to maintain a relationship with your children.  This is often something that’s hard for parents to swallow but this means, for example, that many parents who are not paying child support still see their children – and many parents who are, and stress are, paying child support are not seeing their children.  There is no connection between the two.

Occasionally when the parents break up they can’t agree on aspects of their children’s upbringing, e.g. schooling, medical treatment, holidays and so on.  In that event, if you really can’t sort things out, you can apply to the court for what’s called a SpecificIssue Order.  That’s an order to regulate as it says a specific issue.  Sometimes, parents might not be able to agree on what school their children should go to.  It’s also not uncommon for a parent to ask for a Specific Issue Order to allow them to emigrate to another country.  In that connection it’s worth bearing in mind that married couples need each others consent to remove children from the for anything more than a holiday.

Occasionally couples need to apply to the court to stop their spouse from doing something, e.g. from harassing them, from coming to the family home unannounced and causing problems, from interfering with arrangements for children, from unlawfully removing children from – and so on.  The courts have allowed power to Interdict a parent from behaving in such a manner, in addition to being able to grant a variety of other orders including a Non Harassment Order, granting a Power of Arrest which means a person can be arrested for breaching a court order even if they’ve strictly speaking, not committed a crime in so doing.

ENTERING INTO SEPARATION AGREEMENTS

In relation to children something that lawyers are not always very good at explaining to their clients is that while it’s fine to draw up a written agreement concerning arrangements for couples’ children, these agreements are most definitely not legally binding.  Parents can’t be held to these agreements and under Scots Law, no parent can ‘sign away’ any parental rights.

Agreements like this are useful, however, simply as a record of what was agreed at a specific time and they can be evidence of unreasonableness in the event of an agreement not being adhered to.  Such agreements though can never stop a parent arguing that circumstances have changed and that therefore the agreement should no longer apply. 

Anybody therefore entering into such an agreement needs to be absolutely clear about the obvious limits of these.

Keywords: Contact Orders, Divorce, Divorce and Children, Divorce in Scotland, divorce lawyer,