SEPARATION OR DIVORCE - BUT WHAT ABOUT THE CHILDREN ?
For most couples, separating or divorcing is a time when emotions run high and where distress can leave judgement clouded. Such feelings can only be compounded when children are involved. Naturally, you will both want to ensure that their future needs will be looked after, but making the necessary arrangements can be confusing and unsettling for all concerned.
At such times a solicitor can offer invaluable advice, information and guidance, highlighting all the options and pointing out areas of potential conflict. Ultimately, your solicitor can represent you in court, if necessary, to make arrangements which are in the best interests of your children. Whether or not you are married, a solicitor can help when you are making arrangements for your children.
Frequently Asked Questions
How does a Court decide who the children should live with?
If necessary, and if asked to do so, the Court will make decisions regarding future arrangements for the care of your children. The Court's principal concern is with the best interests of the children. It can make orders about where the children are to live and the level of contact, if any, they should have with the parent with whom they do not live. These are called residence and contact orders.
In law, married parents have equal Parental rights and the Court can take away or restrict these rights if it considers that it is in the best interests of the children to do so. The Court will not, however, make an order concerning a child, unless it is in the best interests of the child to do so. If you are contemplating Court action about arrangements for your children or if a Court action has been raised against you in relation to this, you should see your solicitor as soon as possible.
Do we have to go to Court to make arrangements for our children?
No. Many couples make arrangements for the care of their children following their separation without going to Court. If you are able to decide what is best for your children, you can do so on an informal basis or you may wish to formalise it by way of a written Agreement. Your solicitor can assist you in either event. Rather than go to Court, some couples choose mediation as a means of assisting them in making arrangements for their children. Your solicitor can provide you with details of mediators. Alternatively, you can contact the Records Department of the Law Society of Scotland (0131 226 7411) who can tell you more about mediation.
I am not the parent of a child who lives with me - can I apply for a Court Order?
Anyone who has a genuine interest in the upbringing of a child can apply to a Court for parental rights because, although not their natural parents, relatives, friends or step-parents can often be responsible for bringing up children. This is a complex area and the procedure can be confusing. A solicitor will advise you if you wish to apply for parental rights in these circumstances.
I am not married to the mother of my children. Do I have any parental rights?
An unmarried father may need to have his legal or parental rights concerning his children established by a Court or in a formal Agreement with the children's mother. You should see your solicitor as soon as possible for advice and information if you are in this situation.
Can I get Legal Aid to help me make arrangements for my children?
Legal Aid under the Scottish Legal Aid Scheme may be available to enable you to raise or defend Court proceedings concerning arrangements for your children. Your solicitor will advise you on your eligibility, which will depend not only on your financial circumstances, but also on the merits of your case or your defence. Even if you qualify for Legal Aid, you may have to pay a contribution towards the cost of the legal action. Legal Advice and Assistance may also be available if you are merely seeking advice, or if you are intended to enter into a formal Agreement with the other parent concerning the arrangements for your children. Your solicitor will advise you about your eligibility and any likely contribution you will have to pay.
Will the children have a say in the arrangements made for them?
If they are of an age and maturity where it is appropriate for their views to be taken into account, they will be. The children will have an opportunity to make their views known to the Court if an application is made by either of their parents, or another individual about the arrangements for their care. If the children are old enough and mature enough to understand what instructing a solicitor means, then a solicitor can assist them and accept their instructions.
Whatever your circumstances, trying to reach agreement on arrangements for the care of your children can be difficult. Your solicitor can help you and give you information and guidance on the law and the services which are available to you and your family. If you think that you may have difficulty arriving at decisions for the future care of your children and reaching agreement with their other parent or carer, you should SEE YOUR SOLICITOR FIRST.