For couples who are separated or are about to separate, the festive period often highlights the impact that separation can have where there are children of the relationship. Many parents may be facing waking up on Christmas morning for the first time in their child’s life without being there with them to see what Santa has left under the tree. Important events like Christmas bring the impact of separation upon a parent’s relationship with their child to the surface. However, these issues are of course relevant throughout the year.
For parents newly separating following on from the festive period, or for those who have struggled to reach an arrangement with their spouse or ex-partner, the question arises how can such issues regarding the care arrangements for a child be resolved? Below we highlight some helpful tips which arise from our experience of dealing with these issues.
There is no normal – It is important to bear in mind that there is no “norm”. Clients often come to us to say that a well-meaning friend or colleague has told them that a particular pattern of contact is what “always happens”; or that it is a given that any children will principally reside with mum. Whilst there are indeed certain patterns of contact which we see more often than others, ultimately what parents agree upon (or what a Court orders if there is no agreement) varies significantly. The days are also long gone where it is presumed that the person best placed to have the children with them most of the time is mum. The law clearly directs that all such matters are determined based on what is in the best interests of the particular child concerned. Inevitably, that will vary hugely from child to child. The arrangements will also hugely depend on practicalities such as how close the parents live to one another. The same applies to contact around the Christmas period. If parents live two doors away, then certainly the sharing of Christmas Day is possible. Where parties live further apart, the practicalities of that often prove too difficult. The bottom line is that there is no right or wrong answer to any situation.
Watch your language – Although the concepts of “custody” and “access” have been a thing of the past in Scotland since 1995, we all too often hear those terms and in our view they come with negative connotations – that a child “belongs” to one parent and the other parent is “permitted” to see the child. Albeit there are rare exceptions, in most family situations now both parents will have equal parental rights and responsibilities in respect of child and both are entitled to be involved in all important decisions relating to the child, and to spend time with the child whether they live with you or the other parent. In our view it helps if discussions are framed against the background of the correct terminology of “residence” and “contact” which more appropriately reflects what the discussion is about.
Put the child first – Even where a separation is amicable, parents can (quite understandably) fall into the trap of making the care arrangements for their children about them and their separation, and not about the children themselves. This might because they cannot bear the thought of having to spend a weekend without their little ones, or miss out on seeing them on Christmas Day, but we would advise to give careful consideration where there is a dispute about care arrangements as to whether what is being objected to is because what is proposed is not felt to be in the best interests of the child, or if it is actually connected to the impact it would have on the parent themselves.
Try and find a solution – In the first instance our advice would always be, where possible, to try and work with the other parent to come up with an arrangement that best meets the needs of your child.
For two parents who are struggling to resolve arrangements directly between them, there are methods of alternative dispute resolution available such as mediation where a third party will try and help you and the other party work through the issues that have arisen to find a way through. However if the arrangements cannot be agreed the ultimate recourse is to the court, and as solicitors working day to day in this field our advice would always be to avoid court if at all possible. The bottom line is that once the arrangements for the care of the child are within the remit of the court, essentially a third party will try to make the best decision they can about what is in the best interests of the child. Ultimately however, they may come up with a solution that suits neither you or the other parent.
As such, for those couples who have already faced a Christmas as a separated couple, or will face it for the first time next year, communication and cooperation with the other parent has to be key.
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.