November 22, 2024
Full article
The turn of the year often brings with it an increase in enquiries from clients who have experienced a difficult festive period, or resolved to make a fresh start in 2018. Separation, whatever the time of year, will in the vast majority of cases be an emotional and stressful event irrespective of who called time on the relationship. For couples who have children, the effect that separation and/or divorce will have on any children of the relationship, and that parent’s relationship with the children, is often the biggest concern.
The good news is that in the majority of cases we deal with, our clients go on to find that when it comes to the children, a lot of their fears and worries were unfounded. In many cases, parents can work out directly between them (or with some minimum intervention from their solicitors or a mediator) the care arrangements for any children following their separation. In the main, clients find that their children prove resilient and some even report unexpected positive consequences arising from the separation such as relief at no longer living in an environment of conflict, or children discovering a newfound closeness with a parent, who by virtue of the practicalities of day to day life, was previously less involved with the child.
It goes without saying that the advice we give to any separating client who has a child or children is to make every effort to keep that child’s best interests, which will in most cases include the child enjoying a close and loving relationship with your former partner or spouse, at the forefront of your mind. This may sound obvious, but experience tells us that someone who is going through a separation, particularly in unexpected or acrimonious circumstances, can quite understandably struggle to separate their ex’s failings within the context of the relationship from their role as a parent.
It probably does not help that a number of misnomers (propounded by US TV!) still exist about one parent having “custody” of a child, and the other having “access”. In fact this terminology, and the vastly different rights and obligations associated with the concepts of custody and access, was replaced in Scotland over twenty years ago in 1995. As such, in Scotland if a child’s parents are married, or if a child was born after 4 May 2006 and the father is named on the birth certificate, then both parents will have equal parental rights and responsibilities in respect of that child. That includes equal rights to have that child live with them, to exercise contact with that child, to have a say in important decisions affecting the child’s welfare and to be kept informed and updated on important matters in the child’s life (including for example progress at school).
Of course, in practical terms, if parents are living apart it is not possible for both parents to exercise, at the same time, the right to have a child live with them. Parents must therefore try and work out between them the appropriate arrangements for care of the child or children. Despite the advice that well-meaning third parties often give to our clients, there is no right or wrong answer to this; no “norm” in terms of the pattern – it all comes down to the best interests of that child in their own specific family circumstances.
A final and important point to note about the care arrangements for children post-separation is that the existence of equal parental rights and responsibilities means that it is not easy to change fundamental aspects of a child’s life without the other parent’s consent, or without an order from the Court. For example, if someone has recently gone through a separation it might be tempting to move away with any children to be closer to family and friends. It is a common misconception that this is something which can readily be done by the parent who has principal care of a child, but this is simply not the case, even within Scotland or the UK. While the specific consent of the other parent or order of Court is expressly required to effect a move out of the UK, even with a move within Scotland or south of the border, consent should be secured before the move. In that situation, the court is likely to take the view that the status quo should be maintained while a decision is taken as to which course of action is in the child’s best interests.
If parents cannot agree (with the assistance of third parties or otherwise) on the care arrangements, then sometimes the only option is for a court to determine matters. This is not a route that we advise clients to go down lightly – having a third party taking these decisions out of the parents’ hands can often bring a not entirely satisfactory outcome for both parents. If a client does find themselves in this situation, It is always critical to bear in mind that in making any determination about the care arrangements for a child, the Court’s focus will not be either party’s behaviour towards the other, or what is more convenient for one parent or the other. The Court’s primary focus will always be what is in the best interests of the child concerned, judged objectively.
Keeping your children’s best interests at the heart of any discussion about the arrangements for their care is always key. If in doubt, advice should be sought at the earliest possible opportunity.
The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.
