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Family law: parenting arrangements for children when separating

5th December 2018

Divorce & Family Law Specialist Scotland- Alasdair DocwraDifferences between shared care, residence and contact

Shared care is a situation following separation of parents when the child is looked after by both parents in a shared care arrangement, spending approximately equal time with each of them. Residence is when a child has his or her main home, or “resides”, with one of their parents, although usually having contact with the other.  Residence used to be termed “custody” and confusion still exists between the two descriptions.  Contact is where a child has his or her home, or resides, with one parent while having contact with the other over weekends, week day evenings, or something like that. Formerly, “contact” used to be referred to as “access”.

Increasingly frequently, parents may share the care of their children, particularly if they live reasonably close together, and are able to speak with each other in a reasonable manner.

Otherwise, a child may reside with one of their parents after separation, whilst spending time with the other parent, who has “contact”, as described above.

Does a child’s opinion count when parents are separating?

Whatever the arrangement, a common point is that the child must never feel that it is he or she who has to decide what happens, or that he or she is in any way responsible for the separation.  In the great majority of cases, the separation of their parents is the worst possible thing that children could imagine or experience, and they will be bewildered and devastated. Children do not need the added burden of deciding where they should stay or who they should see and when, and where, in such a terrible time of turmoil.

Having said that, children, particularly older children, will usually like to feel that their views and wishes have been listened to and taken into account in whatever arrangement is decided upon.  Indeed, it is a principle of Scottish Child Law that when parents separate the views of children are sought, and weight is attached to those views taking into account the age and maturity of the child.

Recently, much has been written and said about the importance of making child centred arrangements following upon parental separation, with the welfare and happiness of the child as the paramount point.  The harm to a child, perhaps of lifelong extent, arising from an acrimonious and aggressive separation, in which the child becomes embroiled, and where the priority of the child is lost, has been widely researched and reported upon.

Happily, in part as a response to an increasing awareness of the needs of children, the great majority of separating parents are able to make sensible, sympathetic and child centred arrangements, that best serve their children.

What happens when you can’t agree with your former spouse or partner?

As a lawyer acting for separating parents, and indeed as Curator ad Litem to children, it is often touching to observe the generosity and compromise that separating parents, often with real and upsetting issues between them, can display when striving to ensure that best arrangements are made for their children, and that their children are hurt as little as possible.

There are, however, a minority of unfortunate cases where parents cannot agree arrangements for their children. Disputes emerge, and the children become aware of, and upset by, the consequent arguments.

We are approaching a time of year when special tensions emerge:  Christmas and New Year are emotive times.  Where and with whom should the child be on Christmas Eve and Christmas Day?  Where at Hogmanay? Who should take the child skiing and for how long? Who will see the child back to school in the dark cold days of January?

If you are a parent, separated, and with a child or children, you may be in this sad position of being unable to agree matters with your former spouse or partner.  Following upon separation, it may prove impossible to agree what the arrangements should be.

Perhaps arrangements have been put in place, or been ordered by the Court, which have been broken, and which you seek to have restored?

If so, to delay is harmful. If you allow time to pass, if you tolerate a situation which you feel is bad for your child because you do not know what the next step is, or you are worried about challenging your former spouse or partner, then potential difficulty lies ahead for you.

The longer an arrangement for children exists, the more difficult it is to change.  The children may be “locked into” a routine which is not the best for them, and you may find yourself spending less time with your child than he or she needs, and you want.

Your first step should always be to speak, as soon as possible, with your former spouse or partner, and try to agree an arrangement which is best for the children, and which you both can accept.

However, if such direct discussion fails, you must, immediately, seek help from a Solicitor who specialises in Child and Family Law.

With early skilled advice and assistance, you have the best chance of securing the arrangement for your child which you feel to be the best, or at least a compromise which you can accept.

Child and family law specialists in Scotland

The experience may not be as daunting as you fear. Specialised Child and Family Law Solicitors are skilled negotiators, and will always commence by seeking to resolve problems and disputes by discussion and negotiation upon as amicable a basis as can be achieved. If, however, discussion fails it may sadly become necessary to go to Court to seek a decision where, again, you require a specialist Solicitor beside you.

All solicitors in Morisons’ Family Law Team are accredited by The Law Society of Scotland as specialists in Family Law. Accordingly, if you are having difficulties agreeing the best arrangements for your child following separation, or seeking to restore an arrangement which has been broken, ask for an early appointment and benefit from immediate expert advice.

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