Custody & Divorce In Scotland

What is best for your child?

Custody is now referred to a “Residence” in Scots Law​

The law doesn’t really give any guidance as to where the children should live or how much time a parent should spend with a child.

The court is only concerned with the welfare of a child. There has been a massive shift over the years as to what is deemed to be best for a child.

When I first started out, mothers pretty much without exception obtained “custody “ and dads had “access” normally for a few hours on a Saturday afternoon.

What was bizarre about the old law was that when parents were married they both has equal parental rights. On divorce the parent with custody which got all the rights and the other parent was stripped of all rights.

The law changed in the mid nineties and now both parents retain parental rights and responsibilities even if they divorce.

The court is also told not to make an order unless it is necessary.

Nowadays, it is very common for shared care agreements to be entered into. Dads are no longer diminished the way they were before and it is widely recognised that children benefit from having a close relationship with both parents.

That doesn’t mean to say that there are not still some bumps to be encountered along the road.

I meet a lot of clients who steadfastly refuse to accept that the other parent has a big role to play in their children’s lives. They want absolute control and think that a few hours a week will suffice for the other parent.

I always try to ask them to put themselves in the other parents shoes and ask them how they would feel if their time with the children was restricted in the manner that they are suggesting.

From a child’s perspective, all they want is peace, stability and security. They want to know that thaw adults are making the decisions and that they don’t have to.

They love both of you and can feel very conflicted if they perceive that there is discord.

Also, be alive to the fact that they will tell you what you want to hear. That they love you more or they don’t like staying at daddy’s etc. Just be aware that very often they are telling daddy the same things about you!

What is best for children is business as usual. They want consistency and for both parents to be on the same page with regards to routines, bedtimes etc. . The only way you do that is by communicating with one another preferably face to face.

By choosing an ADR method such as Collaborative Practice or Mediation you can achieve that.

Please also don’t forget grandparents and extended family. It is really important that links are maintained and that your children get to continue to spend time with both sides of the family.

Where court has a role to play​

Sometimes a parent with care can offer no contact or very little or impose ludicrous restrictions. In these cases court is the only answer and the courts are generally quite receptive to giving patents with limited contact much more albeit on a staged and gradual basis.

There are also occasions when a child may be at risk or one parent really isn’t able to look after the children due to mental illness, drug or alcohol abuse or other behaviours that pose a risk. In those types of scenarios the welfare of a child is paramount and court is the only way to proceed in order to protect a child.

 

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