Married couples share parental rights. In the case of unmarried couples, the mother will always have parental rights and fathers will, but only if they register the birth of their child at the time or later. (This only applies to children born after 1 April 2006 incidentally.)
They can also obtain parental rights by formal agreement which needs to be registered in Edinburgh.The most important right for a parent is likely to be the right to have one’s children living with them. After separation, each married parent has the same right as the other to have the children live with them. Most couples sort out themselves the arrangements for their children and share care of their children. More often, it is usually clear which parent should be the main carer e.g. because one parent works full-time.
A non-residential parent will still have the right to maintain relations with their children i.e. to have contact. Again, most couples make their own arrangements for contact but if agreement can’t be reached, then the aggrieved parent can apply to the court for a contact order.
It is possible for the court to make an order for shared residence and as mentioned above, many couples manage to operate a shared care arrangement. (By ‘shared care’ or ‘shared residence’ we mean children spending effectively equal time with each parent.) We are often asked about applying to the courts for shared care. However, we always have to make it clear that it is generally recognised that children need to have a clear sense of home in most cases, and ‘home’ will be with one parent.
There is no presumption in Scotland in favour of shared care and the courts will rarely in our experience order a shared care arrangement if there is a dispute about the issue. That is because, for a shared care arrangement to work, a great degree of cooperation is required between the parents. It’s a Catch-22 in a sense – if cooperation already exists, then it’s arguable there’s no need for the court to make an order. There’s a general rule in relation to children that the courts should only make orders when it’s absolutely necessary: otherwise parents should be left to make their own arrangements. If there is no goodwill and cooperation between parents, a shared care arrangement is likely to be unworkable.We are often asked what a parent’s rights are in relation to contact.
Lack of parental rights is less of a problem than might be supposed because the rights can always be sought from the courts or obtained by formal registered agreement.Having the right of contact will not always stop the other parent refusing to allow contact. More often therefore the problem is not what a parents rights are but rather how to enforce them. In that event, the question what can be done about this is easily answered: assuming the problem can’t be resolved through negotiation/mediation, you go to court and ask for an order requiring the other parent to allow contact.
A contact order will generally regulate the following matters: when a parent is to see their children e.g. on what days and between what times; where the contact should take place; whether it should be supervised and if so by whom; whether certain persons shouldn’t be present; who should hand the children over and where.Some lawyers advise their clients to enter into written agreements in relation to contact and residence arrangements.
However some, perhaps many, lawyers seem not to appreciate that these agreements are not legally binding in the sense they can always be overridden by the court. In other words, the court won’t blindly enforce an agreement but will look at the whole circumstances afresh. Such agreements can still be useful as evidence in court but parents cannot be prevented from changing their mind.
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