Child Residence from a Practical Viewpoint

There are no court actions more emotive than those involving children. While most parents have the children’s best interests at heart, each parent’s view of what these are can be drastically different.

In terms of the European Convention on Human Rights, a child has a right to a family life. However, while many parents readily agree about who a child should see and when, in some unfortunate cases a parent may be caught up in the antagonism that a disputed separation can bring, and seek to use the children as a negotiation tool.

If matters cannot be agreed, a Sheriff will make a decision based on what is before them in court. Accordingly, this is an area where legal advice is essential if the best result is to be achieved.  The law expects all concerned to consider the "best interests of the child" as the basis for any decision on which parent a child should live with or when or even whether a child should be able to have contact with a parent.

In Scotland, we refer to residence ("custody" in England) and contact ("access" in England). As a matter of Scots law, mothers and fathers who hold legal parental rights have equal parental rights.

In practice, the vast majority of children whose parents have split will live principally with their mother.  However, this is not law - it is social custom.  There is nothing to stop a father from seeking a residence order in respect of some or all of his children. If the court determines it is in the best interests of the children, then residence shall be with the father. Nevertheless, in most situations the parties themselves seem to intuitively accept that the children will reside with their mother.

This leaves the sometimes thorny issue of when or if the father will have the contact he wants with his children. The language of "ownership" is too often used about children in these cases and the party who adopts a child-centred approach should find the court sympathetic. Far too often, child contact disputes are more about the parents than the children.

Often, one parent starts a relationship with a new partner. Sadly, a large number of contact disputes are triggered by withdrawal of cooperation shortly after a parent finds a new partner.

When the parents cannot agree, a court may have to decide. Any parent can seek a residence or contact order, either as part of a divorce action or as a separate action in its own right. Parents do not have to be married to seek such orders. The court will fix a child welfare hearing and the parents will be required to attend. The court, which is heard in private, will ask the key question - what is in the best interests of the child? Children aged 12 or over are usually asked for their input and many courts will extend that to children a little younger than 12.

The court's jurisdiction and orders stop when children reach the age of 16. After this, the children are considered adults and therefore capable of making their own decisions on who they wish to reside with, and have contact with.

If the parents are able to reach an agreement on what the arrangements should be for childcare, then there is no need to do anything at all in that regard - just keep calm and carry on. If you like, you can ask a court to make orders reflecting your joint wishes when the issues that triggered the court action have been resolved, but many judges do not see the point in doing that and actually refuse.

As an alternative to asking a court to decide matters, you can enter into a private written agreement outlining exactly what will happen and when (for example, the children will live with Parent A but see Parent B every second weekend). These agreements can be drafted by solicitors.

However, you do not have to put things into writing and actually this can sometimes backfire. If you commit yourself to contact at, say, 7.00pm on a Tuesday and you then turn up late due to bad traffic or problems at work, your ex-partner may apply the letter rather than the spirit of the agreement and slam the door on you at 7.01pm! This could then trigger formal legal action due to an unrealistic written agreement in the first place.

Basically, there is no right answer other than to say that, more often than not, children benefit from parents who can agree matters between themselves, and that lawyers and courts should only become involved if key issues cannot be agreed, if doors start to slam after 60 seconds, if telephone calls about childcare are frequently ignored or if child welfare seems to be a problem.