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. This is called residence – formerly custody. This right is not lost due to separation, incidentally but what tends to matter is practicality: few couples genuinely ‘share’ care of (as in have equal time with) their children – whether before or after separation. More often, it is usually clear which parent is or ought to be the main carer e.g. because one parent works full-time.
It’s therefore usually the case that one parent is the main carer and whom the law will regard as the resident parent. The other parent will still have the right to maintain contact with their children, however.
It is nevertheless possible for the court to make an order for shared residence and as mentioned above, some couples manage to operate a genuine shared care arrangement. 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.
It is not good for children to be shutting between two homes.There is most definitely no presumption in Scotland in favour of shared care, although many fathers think there should be. The courts will rarely in our experience order a shared care arrangement. That is because, for a shared care arrangement to work, a great degree of cooperation is required between 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. If there isn’t already cooperation and goodwill, then the courts will be reluctant to make an order for shared care.We are often asked whether it would be possible for one parent to apply for a change of residence – that is, to transfer care of a child or children to the other parent.
We often find ourselves having to give fairly robust advice on this point because it is almost impossible to achieve a change of residence absent clear evidence that the current situation is not working in favour of a child. The problem is that the kind of concerns that might justify a change of residence e.g. neglect/abuse, drug-taking, violent partners etc. are the kind most likely to have triggered social work intervention already. If the social work department have not already intervened, then the parent seeking the change is likely to face a very uphill struggle.We therefore often have to tell parents that the longer a care arrangement has been in place, the less likely it is that the court will make any change to that arrangement.
The most powerful argument the resident parent will have is therefore being able to point to a status quo of some longevity.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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