What is Residence and Contact?
Residence and Contact are the terms used to refer to the living and care arrangements for children whose parents have separated, sometimes referred to as access, custody and visitation. Residence (otherwise known as custody) is the term used to refer to the place and with whom where the child principally resides and contact (access/visitation) is the term used to refer to the time that a child spends with the parent with whom they do not usually reside. This can also be referred to as care arrangements for children, or shared care arrangements. There is no set formula and it is specific to each family and the needs and best interests of the children of the family. We understand that these can be difficult decisions to make and also difficult discussions to have with your ex-partner or spouse. We are here to help and guide you through the process.
What does a child residence and contact order mean
A residence order (sometimes known as custody) is an order made by the court (either the Sheriff Court or Court of Session) stating with whom a child or children shall live. This can be made in favour of a parent, or another family member or person who can demonstrate a close connection to the child (for example grandparents, aunts, cousins, kinship carers, stepparent) This order means that the court has decided that it is in the child’s best interests for the child or children to live with that person. Parties can also come to an agreement outwith the court setting that their child with reside with one parent most of the time and spend time with the other. A contact order often goes hand in hand with a residence order. This is an order that sets out the time the other parent or person will spend with the child, for example on certain days and times. Again, parties can agree this between themselves outwith the court setting.
How do I get residency of my child
Outwith the court setting, this would be dealt with by way of negotiation, mediation or arbitration and then reflected in a minute of agreement (a written agreement which sets out the arrangements parties have come to between themselves)
If this cannot be agreed, or if there are other reasons for applying for a residence order from the court such as domestic abuse or on the advice of agencies such as social work, then either party can apply to the court for a residence order in their favour. If both parents are seeking residence, then the other parent/party can also ask the court to grant a residence order in their favour and there may require to be a proof (an evidential hearing) to decide who the child should have their principal residence with.
To raise an action for residence in the sheriff court, you will require to lodge an initial writ with a crave for a residence order in your favour. This is regulated by section 11 of the Children (Scotland) Act 1995. If the action is defended, your case will move forward to a child welfare hearing where the court will hear from both parties and decide which orders to make. The court is very unlikely to make any final or determinative decisions at this stage. If the action is undefended, the person who has raised the action can ask the court to grant a final order in their favour. They will need to lodge Affidavits (sworn statements) in support of their request for residence.
How is it decided who obtains child residency rights
- It depends upon which forum parents/parties are in. Parties can come to an agreement between themselves as to the residence and contact arrangements for their children.
- If they cannot reach agreement, a court action can be raised (please see below)
- Arbitration can be used whereby an arbitrator will make a decision regarding many issues or a specific issue.
- Mediation can help parties come to an agreement themselves.
- There is no definitive test for this. It is circumstance and family specific. What is right for one child and family, will not be right for the next. It is certainly not one size fits all.
What is the process if parents cannot come to an agreement
The court has as its paramount consideration the best interests of the child. This means that the court is concerned at the forefront of its decision making about what is best for the child at the centre of the action. The court, as a result of the Children (Scotland) Act 2020, is now required to obtain children’s views over the age of five, however these views are not determinative. The older a child is, the more weight their views tend to be given.
The court may also instruct a child welfare reporter, an independent person appointed by the court to prepare a report known as a child welfare report (previously a bar report) which looks at all of the circumstances of the child and their family. This report can often be very helpful and help parties come to agreement, or help the court to come to a decision. If parties are still unable to agree, then there may require to be a proof where evidence is led. The court will then make a decision as to where the child should reside after this.
Parties can also agree to residence and contact arrangements at any point during the action and then have the court make an order to reflect their agreement, provided the court agrees this in the best interest of the child.
What are the types of court orders for child arrangements?
Types of Child Arrangements
Parents who have parental rights and responsibilities have the right and responsibility to safeguard and promote their 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, There is no one size fits all arrangement. It does depend on each family unit. Some families will share the care of their children, for example one week with one parent and vice versa, or they will spend some time with one and alternate weekend with another. It will also depend on geography, the work and schooling commitments of the family and what is deemed to be best for the child.
Sole Custody
This is a term referred to often by those seeking an order to reflect the fact their child lives with them. However, this does not mean that parent can take all of the decisions regarding their child without consultation with the other. If a court remove the parental rights and responsibilities of one parent, then the other parent would be deemed to have the sole custody of the child.
Shared Parenting
In recent years there has been a clear shift in the family dynamic and the arrangements for children when parents separate. Where in the past there may have been a tendency for children to remain with one party (quite often the mother) and have contact with the other parent at the weekends, societal shifts have now started to reflect in the orders that the court makes and the agreements parties are coming to, to regulate arrangements for children. It is now widely acknowledged and recognised that shared parenting is a positive way in which to parent, and that both parents can bring positive influence to their children’s lives.
Contact
This is the type of order made to reflect the time that one parent spends with the child, where the child is not normally resident with that parent. For example, each alternate weekend or 2-3 days a week. This also includes holiday contact.
Deprivation/Acquisition of Parental Rights and Responsibilities (PRR’s)
If, for whatever reason, one parent has not been named on the birth certificate of the child, then without agreement from the other parent, they will need to apply to the court to acquire parental rights and responsibilities (PRR’s). They also may need to apply for declarator, for example a father seeking the court to declare he is the father of the child. The parent will need to demonstrate to the court that it is in the child’s best interests for them to acquire PRR’S. Other parties can also apply to the court to acquire parental rights and responsibilities for example this is quite common when a grandparent or other 3rd party is caring for a child that is not their immediate offspring as they may require these rights and responsibilities to take decisions in the child’s best interests.
There can also be reasons why a parent or other carer of a child would apply to the court to deprive another person of their PRR’s – in cases where a parent has been convicted of a serious offence, where a parent has not had any contact or relationship with a child for a lengthy period of time or where a parent or carer has consistently acted in a manner contrary to the best interests of the child (for example having been charged/convicted of assaulting the child) There is a high threshold to overcome to remove a parents PRR’s.
These are issues which require straightforward, expert advice and should not be left to drift. The court becomes more reluctant to interfere with the status quo the longer the situation persists. A year in the life of a child is an extremely long time and we could always suggest you are taking expert advice from our office now should any of these issues affect you.
Child Residence Does one parent have more rights than the other?
No. Provided both have PRR’s, then these rights are equal. Parties should be discussing any major decisions regarding the child’s welfare with each other. If parents cannot agree, then the court may require to become involved. Grandparents and other 3rd parties can also acquire PRR’s if the court deems this to be in their best interest.
What age can a child decide where they want to live?
Children’s views are never determinative, however the older a child is, their views are given substantially more weight and it is acknowledged that children will start to “vote with their feet” in the teenage years. Children should not have the weight of these decisions placed upon them and we would always urge clients to ensure they keep any dispute around children’s living arrangements away from their children as far as is possible.
How much does a residence order cost in Scotland?
Unfortunately it is impossible to give a definitive answer to this question, as each case involving orders for children is circumstance and case specific. Therefore, it will depend on the conduct of the other party, the number of hearings that are required, if a child welfare report is required, whether it must proceed to a full evidential hearing (proof) and how many days of this are required. Legal aid may also be available which is both means and merits tested and may meet some or all of your legal fees.
How long does a child residence order take?
This is another question which is impossible to answer as it will depend on the specific circumstances of the case, and also will depend on pressure of court business and progress of the case. There is an onus on the court to expedite matters relating to children to avoid unnecessary delay. This is to provide children with certainty regarding their living arrangements as quickly as possible.
How long does a child residence order last?
Once a final order is made by the court, it will last for the duration of childhood- 16 in Scotland. However, at any stage prior to this, either party can seek to have the order varied, by minute to vary procedure, which can ask the court to make changes to the order in place. The party seeking to return the action to court must be able to demonstrate there has been a material change in circumstances for the court to become involved again. The matter could also be returned to court if either party fails to obtemper (abide by) the order by way of an action for contempt of court.
Here at Caritas Legal, we understand that arrangements for children can be one of the most stressful decisions to come to, particularly if you and your ex-partner cannot reach agreement amicably between you. We would always suggest parties attempt to resolve matters out with the court setting as far as possible. If that cannot be achieved, then we are as comfortable litigating as we are negotiating on our clients behalf’s. Contact us today to make your initial appointment to discuss your options and have the burden eased by our expert, empathetic advice.
