If a child’s birth parents both have parental responsibilities and rights, it is up to both of them to decide what’s best for their child. This includes having the right to make decisions on where the child lives and who is involved in their upbringing, alongside safeguarding and promoting the health, welfare and development of the child.
Without parental responsibilities and rights, it’s up to the child’s mother to make important decisions. Fortunately, there are ways you can gain rights as a father, even if you are unmarried or absent from the birth certificate.
All mothers have parental responsibilities and rights as soon as they give birth to a child, and can only be removed by courts or if the child is adopted. Not all fathers have parental responsibilities and rights.
Do unmarried fathers have rights?
Ultimately, unmarried fathers have parental rights if they are registered on the child’s birth certificate within 21 days of the child’s birth. As long as the father is on the birth certificate, both parents will have full parental responsibilities and rights.
If you are the child’s biological father, you will have parental responsibilities if you:
- Have signed and registered an agreement with the child’s mother (unless a court has revoked her parental responsibilities and rights)
- Were married to or in a civil partnership with the child’s mother when the child was conceived
- Married or entered into a civil partnership with the child’s mother after your child was conceived
- Are registered on the birth certificate within 21 days of birth
- Are given parental rights by a court
It’s important to understand that parental responsibilities and rights are automatically acquired by unmarried fathers, as long as they are registered on the child’s birth certificate within 21 days (after 4 May 2006).
The Family Law (Scotland) Act 2006 introduced new legal rights for unmarried fathers. Previously, unmarried fathers had no automatic parental rights and responsibilities, even if they were named on the child’s birth certificate. This is no longer the case, with unmarried fathers now automatically retaining parental rights and responsibilities as long as they are named on the child’s birth certificate.
What rights do fathers have if not on the birth certificate?
Unmarried fathers who are not on the child’s birth certificate will have no parental responsibilities or rights for the child unless otherwise granted through a court or written agreement with the child’s mother.
For unmarried fathers that are not on the child’s birth certificate, the process is very different and you will need to obtain a court order.
To gain parental responsibilities and rights if you are not on the birth certificate, you will need to apply for a court order granting your request. You will not need the mother’s consent to do this.
Keeping the child’s best interests at heart
When making any decision about a child, courts will honour the child’s best interests in any consideration. It is not what is best for either parent, but what is best for the child.
When relationships break down and parents separate, there may be a ‘resident’ parent (with whom the child spends the majority of their time) and a ‘contact’ parent (with whom the child may exercise residential, non-residential and holiday contact).
In Scotland, it is becoming increasingly common for parents to have the joint responsibility of parenting with both parents remaining amicable.
How to get support regarding child custody
At Cath Karlin Family Law, we understand how emotionally and psychologically draining it can be to battle over father parental rights. This is why we aim to have you carry out your separation in the most respectful and dignified way possible – always placing the best interests of the children first.
As with any child custody issues, it is always best to openly discuss matters directly or attempt to do so in mediation, rather than involving the court. We always advise that court is only seen as a last resort.
Get in contact today for any help, guidance on rights for fathers or support with all elements of the Edinburgh divorce process.