Often the most difficult decisions to be made following the breakdown of a relationship are those relating to the care of the children. Questions such as where a child should live, how often each parent should have contact and the maintenance which should be paid are just a few of the many issues which can cause conflict between parents and in turn cause distress for the children.
The Children (Scotland) Act 1995 reshaped the legal landscape and introduced the concept of Parental Rights and Responsibilities. Terms like custody and access were replaced by residence and contact.
Parental Rights and Responsibilities work in tandem with one another to give parents the rights necessary to carry out their responsibilities as parents. The concepts are interdependent. A parental right allows a parent to do something connected to the upbringing of a child. The parent has a parental responsibility to discharge that right in the best interests of their child. Parental rights include the right to have your child living with you or to decide where they should live and this coincides with the responsibility to ensure the child attends school and is properly cared for. If a child is not living with a parent then that parent has the right and responsibility to maintain contact with the child and to be involved in the child's upbringing. In exercising parental rights and discharging parental responsibilities, a parent must act in the best interests of their child.
A married couple both have Parental Rights and Responsibilities in relation to any children they have and since 4 May 2006 an unmarried father whose name is on his child's birth certificate also has Parental Rights and Responsibilities. Unmarried fathers of children whose birth was registered before 4 May 2006 do not automatically benefit from Parental Rights and Responsibilities. They can acquire these Parental Rights and Responsibilities either by agreement with the child's mother or else by an order from a court.
Parents need to be able to communicate with each other for the duration of their children's childhood and probably for a number of years beyond that time too. Bitter and costly litigation is unlikely to create the best environment for the children. The parents are the ones best able to make decisions about their children and the court should be the option of last resort.
The Blackadders Family Law team actively encourages parents to resolve any issues with the assistance of our Accredited Mediators or Collaborative lawyers or through sensible negotiations.