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The breakdown of family relationships is rarely straightforward.
Over the course of your relationship with your partner you will have had many shared experiences together, arguably the most of important of which may well be becoming a parent. Bringing a child into the world is one of the most rewarding experiences for many people, but it also comes with many responsibilities.
Furthermore, these responsibilities will not extinguish if you and your spouse/ partner find yourselves unable to continue to live together in a relationship. Specifically, in terms of you and your spouse separating, there will need to be some time given for you both to come to some agreement in terms of where they will live and how they will maintain a relationship with both of their parents.
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At The Glasgow Law Practice, we have a long history of working with clients to maintain their relationship with their children, even where they are unable to continue to live as a family unit with their spouse.
We also have experience of advising other family members on how best to preserve relationships that they have with younger members of their family when their parents are unable/unwilling to separate their interests from those of their children.
If you would like to know more about how the law applies to the maintenance of family relationships on separation or divorce, our team can help you.
YOUR QUESTIONS ANSWERED
The main issues regarding children when it comes to familial separation are (i) residence; and (ii) contact.
These issues tend to be described in law as ‘custody’ and ‘access’ respectively, but essentially relate to where a child will live and how they will maintain contact with their respective family members.
The simple answer to this question is ‘no’. The law has been designed to reflect the fact that a child will have relationships with many different people in their family – aunts and uncles, grandparents, cousins etc.
Indeed, the law looks to preserve these relationships wherever possible. Legally speaking, anyone that is able to “claim an interest” i.e. has an interest in the welfare of the child, can apply for a residence or contact order.
In Scotland the law gives people – whether parents, grandparents, more distant relations – the tools that they need if they find themselves in a situation where they are likely to be denied a relationship with a child owing to a family breakdown. Children grow and learn as a result of the many different people that are involved in their lives, and the use of residence and contact orders is designed to preserve this.
Further, many members will understandably develop their own relationships with children in the family, and the law will not allow anyone to deny a child the opportunity to engage with their family simply due to the fact that, for example, their parents are unable to get along with one another.
As mentioned above, residence relates to where, and with whom, a child under the age of 16 will live following a separation of their parents. In normal circumstances it tends to be both parents who will decide between them where a child will live. The reason for this is that in law a child’s parents have the legal authority (and responsibility) for the child’s wellbeing via ‘Parental Rights and Responsibilities’. Therefore it would be inappropriate for anyone else to make the decision on where a child lives following their parents separation.
There are instances, however, where those holding Parental Rights and Responsibilities, cannot come to any agreement. In these cases, one of the main options open is to apply for a residence order from the Scottish courts. By making an application to the court, you are in effect asking for the court to agree that your child should live with you. It’s important to highlight that the courts, as a general rule, do not like being involved in family related decisions.
However, where an application for a residence order is made, the court will make a decision based on one thing alone: the child’s welfare. You will need to be able to demonstrate in your application that you are capable of providing a home for your child, and the court will even invite the child to give their own views on your application. The courts will not grant an application for a residence order unless they are convinced that the child will be well cared for.
In law, ‘contact’ relates to how a parent maintains a relationship with a child under 16 years old, that does not live with them. The central idea behind ‘contact’ is the preservation of the relationship between the parent and child, as well as being able to speak to one another e.g. by phone, email or even Skype.
As in the case with residence, the preferred approach in Scotland is for parents to be able to come to some decision amongst themselves on the maintenance of a relationship with their children. However, the courts will make their own decision in the event that an application for a ‘contact order’ is brought before them.
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