Most parents have ‘parental responsibility’ for their children, which includes a duty to protect and maintain them and provide them with a home. It also encompasses various rights relating to the upbringing of a child covering issues such as schooling or medical treatment.
In Scotland, all mothers automatically have parental responsibility.
Fathers automatically have parental responsibility if they:
were married to the birth mother when the child was conceived
married the child’s birth mother after the child was conceived, or
jointly registered the child’s birth with the birth mother
Once parental responsibility has been established, it does not cease upon divorce or separation.
If you would like to obtain parental responsibility and the other parent agrees, you can use a written parental responsibility agreement which needs to be signed and witnessed, and registered in the Books of Council and Session. If you would like to obtain parental responsibility and the other parent doesn’t agree, you can apply to the Sheriff Court to be granted parental responsibility.
Informal agreement and mediation
In the majority of cases following a divorce or separation, parents will make their own arrangements regarding who their children will live with, how often the other parent will see them and how parental responsibility will work in practice. If there are difficulties reaching an agreement, mediation or collaborative family law can be helpful in overcoming any obstacles. However, a court will not be able to enforce an agreement reached informally.
The Scottish Government’s ‘Your Parenting Plan’ offers guidance on how to best make practical arrangements regarding your children on separation and divorce.
If divorcing parents are unable to reach an informal agreement regarding the custody arrangement or their children (eg due to issues such as domestic violence), it may be necessary for the court to intervene. The courts can make a ‘residence order’ which determines with whom the child is to live. A residence order can be made in favour of:
one parent - the child will live with this parent only
both parents - a residence order can be made for both parents, even where they’re not living together. Where such an order is made, the parents have joint custody of the child and the child will live with both parents. The order will say how much time the child is to live with each parent
a third party - for example, a grandparent or aunt
A residence order in favour of a grandparent means that the child will live (or continue to live) with that grandparent. It will also give the grandparent parental responsibility for the child for the duration of the residence order.
Divorcing parents are usually expected to make their own arrangements regarding the maintenance of contact with their children. The courts will however consider making a contact order where divorcing parents cannot come to an agreement or concerns exist regarding a parent having contact with a child (eg due to issues such as domestic violence).
Contact orders may have certain conditions attached to them. These include:
the type of contact a parent may have with a child (eg visitations, contact via the telephone, contact via Skype or contact through letters)
the locations of the visit
the time of the visit
where the child is to be picked up
Contact order can also be made to allow a child to have contact between other relatives or friends.
A divorcing parent can apply for an interdict to prohibit or restrict certain conduct by the other parents towards the children. A pursuer can seek such an interdict to prevent any action which breaches their legal right. An interdict can also prohibit the other party from entering into or remain in:
the matrimonial home occupied by the divorcing couple
any other residence occupied by the pursuer (the party applying for the order)
the pursuer’s workplace/s
any school attended by the children
Specific issue orders and prohibited steps orders
Where divorcing parents are unable to reach agreement regarding specific issues in relation to parental responsibility, they can apply for a ‘specific issue order’. Such a specific issue order can be obtained for a number of different issues including:
deciding which school a child should attend where there is a dispute (eg in the case of religious schools)
determining if a parent can take their child abroad on holiday
a parent wishing to relocate with the child - either within Scotland, the UK or abroad
Related to this is a ‘prohibited steps order’ which essentially prevents a parent from doing something relating to parental responsibility (eg prohibiting them from taking their child abroad on holiday).