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