I’ve recently separated from my partner. Will she automatically have residence of our child because she is the mother?
In short, no. There is no presumption in law that says a child should reside with one parent in particular should their parents separate. The courts and legislative framework is concerned with what is in the child’s best interests. For each child this will be different, depending on their specific situation. For some children it will be better for them to reside with one parent for the majority of the time and see the other parent at specified set times; for other children it may be better for them to have no contact with the other parent at all; and for others it may be better for their parents to have a shared care arrangement. This will all depend on how this can operate in practice, and each family will need to work together to come to an agreement that realistically meets the needs of the children.
What if we can’t agree the arrangements for our children?
If you are unable to agree matters between you, there are many different options available. You can negotiate via solicitors, attend at mediation, utilise the collaborative process, arbitration or litigation. Litigation is the last resort for most people and we will always strive to resolve matters outwith the court setting where possible. If that is not possible, then court proceedings may need to be raised. This means that the court will decide what will happen in relation to the ongoing arrangements for care with your child and the time that they spend with each parent. The court is interested in what is best for your child and their welfare. It is not focused on what is best for the adults in the situation, although sometimes practical considerations will need to be balanced such as parents working, and the location where they live. If there are other issues such as additional needs of the child or parent, or domestic abuse concerns, then the court will need to take these into consideration when deciding what is best for the child.
I have residence of my child therefore I can make all of the decisions
This is a common misconception among separated parents. whilst one parent may have residence of the child [either with an order from the court or as agreed between parties) this does not mean that parent can make all decisions in relation to the child. While that parent may take day to day decisions for the child such as what the child will eat for lunch or wear, in terms of the big decisions, these must be taken in conjunction with the other parent, such as which school the child attends and in which area the child will reside (e.g. if one parent wishes to move way) If both parents hold parental rights and responsibilities they have both a right and a responsibility to be involved in their child’s life and the decisions relating to their child and the child’s welfare.
I am not named on my child’s birth certificate
If you are not named on your child’s birth certificate then you do not have what are known as parental rights and responsibilities. These are legislative rights and responsibilities which set out the relationship which you have with your child legally (at section 1 and 2 of the Children (Scotland) Act 1995). The first step is to try to enter into discussion with the mother of your child to confirm whether or not they are willing to voluntarily have your name added to the birth certificate. If that is not possible then you may require to instruct a solicitor. There are various options as you may be able to have what is known colloquially as a section four agreement entered into whereby you will have parental rights and responsibilities conferred upon you and the birth certificate can then be amended. If this cannot be agreed, then you will have to consider raising a court action to have you declared as the parent and to have rights and responsibilities conferred upon you. It is important you have as much information as possible to demonstrate why you believe you are the child’s parent and any information as to why you should have parental rights and responsibilities conferred upon you. It is not a given that the court will confer these rights and responsibilities upon you but if for example you have been in your child’s life or having exercising regular contact with your child then that is the first step in terms of demonstrating to the court that you are a suitable person to have parental rights and responsibilities. Other people, such as grandparents, can also have parental rights and responsibilities conferred upon them and we look at this in another blog entitled “Parental Rights and Responsibilities”
I’m worried that my partner will remove my child from my care
This is another common concern that parents have particularly if there is an international connection such as one parent having dual nationality or originally coming from a country abroad with connections remaining in that country such as family and/or property. One parent may be concerned that the other parent will attempt to remove the child from their care permanently even if they are currently residing in the same area. If any threats have been made to remove the child whether temporarily or permanently then you require to take urgent legal action. This normally will require a court action to be raised to interdict (prevent) removal of the child from the jurisdiction. Equally, if your child is retained by your ex-partner after a period of agreed contact, then urgent action is also required to seek return of your child (known as an action for delivery) In the worst case scenario, if your child has been removed from Scotland, we can assist with the process of having your child returned. If your child has been removed to Scotland, we can raise proceedings under the Hague Convention on Abduction of Children to have your children returned.
I’m not getting to see my child
There could be many reasons as to why contact between a parent and a child ceases. If there is no justifiable reason for that having happened then you should take advice as soon as possible in order that you can consider your position. You may be able to resolve matters by negotiation with the other party, mediation, arbitration or via the court process. The most important thing to bear in mind is that you do not delay in taking action to have contact reinstated. The longer that you do not have contact with your child the harder it can be for contact to be reinstated. It’s important that you act quickly and instruct a solicitor as soon as you can in order that progress can be made and contact between yourself and your child can be put back in place, whether that be to the previous arrangement or incrementally with a view to increasing that contact over time.
I’m a grandparent, do I have any rights?
As a grandparent, you do not have any specific rights in law in relation to spending time with your grandchildren. That does not mean that there is nothing that can be done should you be in a situation where you are not getting to see or spend time with your grandchildren. We cover this topic in depth on our website but you are able to either negotiate an agreement or raise a court action if matters cannot be agreed.
Please call us for further advice on 01383 431 101 or email danielle@caritaslegal.co.uk
