Mother and Father Rights in Getting Child Custody

Accustoming yourself with the right information regarding child custody information is absolutely vital for any parents going through a separation. Certain elements of the divorce process can differ by location – which is why it’s important to be fully equipped with the facts when going through a divorce in Edinburgh.

Investing in the services of an experienced Edinburgh-based family law firm will ensure that your divorce is carried out as smoothly as possible,  removing the need to involve children in the further distress of the court system, whilst also ensuring that the best outcome is produced regarding your child’s custody.

Knowing your rights from your wrongs

Essentially, as long as the father is on the birth certificate and the child was born after 2006, both parents will have set parental responsibilities and rights when going through a divorce. Civil partnerships going through a separation will usually have identical rights in regards to children as well. 

Those who are not married and also not officially listen within the child’s birth certificate will require to apply for a “dellerator of paternity” in order to obtain a court order – a process which can be done easily in the same court action.

Civil courts are responsible for handling family matters within Scotland, who have the power to make Child Arrangement Orders. This order determines where the children will live on a permanent basis and also define the visiting rights of the other parents involved. 

In terms of who can apply for a child court order, the most eligible candidates include the child’s parents, step-parents, grandparents, other close members of extended family and any other individuals with a strong stake on responsibility. Within Scotland, a child order can be made for any child under the age of 16 years old.

The types of court order involved in child custody explained

Essentially, the two major decisions that a court will make regarding child custody in most divorce cases is where the child will reside and what means of contact they will have with the other spouse involved. However, there are often many variations to this, which will be touched upon below.

A residence order states where the child will live on a permanent, long term basis. It is not uncommon, however, for a court to make an order in favour of more than one parent – in which case it will have to be defined how much time they will spend with each side of the couple. A shared care arrangement is where both parents have a residence order over the child, meaning custody is essentially split. 

When a residence order is given to one parent, then a contact order regulates what means of communication, care and correspondence the other parent is to have with the child. Included in this order is details and rights regarding visits, overnight stays, telephone calls, weekends and holidays. 

At the forefront of the court’s decision making process is the best interests of the child involved. As part of this order, specifics regarding time, date and means of contact will be set out. Deliberately failing to obtain or indeed follow a child contact order where one is necessary could equate to contempt of court and prosecution. There are two major forms of contact which a court order can detail, namely: 

  • Direct Contact: encompassing all face to face meetings and interactions between adults and children, including overnight stays and trips out. In certain circumstances, the court may deem it necessary for contact to be supervised here.
  • Indirect Contact: consisting of all contact which is not conducted in person. This is often ordered due to geographic circumstances, such as in cases where one parent is particularly far away from the children. This type of contact order is often deemed necessary in cases where work is needed to be done to re-establish a relationship between a parent and child after a long period of time where little contact has taken place – after which the potential for direct contact to be made is there after. Telephone calls, letters, video calling, text messaging, email, direct messaging and other forms of digital communication are all included under this category.

In certain cases, the court may deem a Specific Issue Order to be necessary if parents/guardians are unable to come to a sound agreement regarding a certain element of the child’s life. Such examples of a disagreement may relate to health (e.g. whether to have a certain operation), education (e.g. what school to attend) or any other large one-off event (e.g. whether they are to go away to a foregin country for a fixed period of time).  

Financial support and child custody in Scotland

All over Britain, The Child Maintenance Service (CMS) has jurisdiction over child support and financial obligations for children following divorce – up until a child is 20 years of age. However, it is also worth bearing in mind that if the child attends university then they are liable to receive financial support up until the age of 25 (or until studies conclude).

The fee which is required to be paid is calculated based on various factors – namely gross income of the parent without primary custody. The financial income of the parent who holds the residence order is irrelevant in this process. Those who are earning in excess of £3000 a week, however, considered to be a “high earner”, have reached the salary limit and will not have to pay extra if earning excess of this. 

The CMS will charge a fee if they need to extract payment from any partner who refuses payment – so it is always beneficial to pay this amount willingly. Also, there is no jurisdiction that the CMS hold over paying school fees, meaning that this needs to be agreed upon by the individuals or alternatively dealt with in court. 

How to get support regarding child custody

We here at Cath Carlin Family Law believe that going through a divorce is financially, emotionally and psychologically draining enough time without having to deal with a custody battle over children. This is why we aim to have you carryout your separation in the most respectful and dignified way possible – always placing the best interests of the children first.

Get in contact today for any help, guidance or support with all elements of the Edinburgh divorce process.