The main legislation that deal with children in the Children (Scotland) Act 1995. Section 11 of the 1995 Act permits the Court of Session or the sheriff court to make orders in relation to parental responsibilities, parental rights, guardianship or the administration of a child’s property.
The main parental rights and responsibilities that are dealt with in practice are that of residence and contact and the regulation of them in the circumstances where the parents are no longer (or never were) in a relationship. The principal that guides this is that the paramount consideration is the welfare of the child.
Ordinarily the main orders will be one for residence (with whom the child lives) and contact (the way ion which the non-resident parent maintains a relationship with the child). There are options for shared residence as well.
It should be noted that there is no presumption in favour of either parent. The only test that concerns the Sheriff (and all parties involved) is that the welfare of the child is the paramount consideration.
If the child is sufficiently mature their opinion may be asked. If they are 12 or over then their opinion MUST be sought. It is often obvious when a child is being coached by one of the parents to put forward a particular view. This is unacceptable no matter the best intentions of the parents and Courts take a dim view of this behaviour.
It is our practice to work "beyond the objective". Any agreement or Court Order should be capable of being maintained and this often requires communication between parties in regards the children. Failure to do this will often lead to "boomerang" proceedings where the Court makes a final order only for it to fall apart and the matter invariably returns to court at great expense for both parties and usually to the detriment of the children.
If you wish to discuss a Court Action for residence or contact or wish to negotiate a settlement then please contact us.