Some relationships, unfortunately, do not survive as long as people would hope. The separation which follows often involves a great deal of negotiation and discussion about how property is to be divided. The situation is more complicated where there are children involved as parents, following separation from their spouse, have to decide on how best to arrange for their care.

Making Arrangements for Children in Separation

The decision concerning a child’s residence and contact, however, doesn’t necessarily need to be a battle between parties. It is possible, if a child’s parents are willing to enter into a shared arrangement, that both parents hold equal responsibility and, for example, the child spends half of their time living with each parent. This might not be possible in all cases, however, particularly where one parent is away from home for long periods of time (because of work commitments, for example).

Court decisions and children

Traditionally, the courts do not like to get overly involved in what is otherwise a family matter. They are not specifically designed to deal with these particular kinds of dispute. However, the situation is different where parents are separating, and neither party is able to agree on: (i) who is to be made responsible for day-to-day care of the child; and (ii) how best to maintain a relationship between a child and both of their parents. 

It is in these situations that the court will take an interest, and can be asked to grant Residence and Contact Orders in respect of children. 

What are Residence Orders?

Where a couple are separating, the courts can be asked to make a decision on which parent a child is to live with. It is important to understand that in making an application for a Residence Order, i.e. asking the court to decide that your child lives with you, does not take away the rights and responsibilities that your spouse has by virtue of their being a parent.

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What are Contact Orders?

Not unlike Residence Orders, Contact Orders are binding decisions of the court. However, they relate to the maintenance of a relationship between a child and a parent that no longer live together. These Orders tend to govern physical contact between a parent and their child, but can also include contact via email, Skype and by telephone. 

What are the courts interested in?

While both Residence and Contact Orders concern different things, the decision of a court to grant or deny an application for an Order will depend on largely similar criteria. These include:

  • The wishes of the child – where a child is old enough to do so, a court will ask a child what they think about the prospect of living with one of their parents as opposed to another.  Furthermore, a court will also attach weight to whether or not the child concerned feels that the contact proposed is acceptable or not. 
  • The needs of the child – the courts will take a broad view of the situation of the children, weighing what their physical, emotional and education needs are.
  • The capacity of parents to meet a child’s needs – the court's analysis of the situation must be all-encompassing. It will have to be satisfied that the applicant for a Contact or Residence Order is not only aware of their child’s needs, but is also able to meet them. The courts will then need to take into consideration the availability of a home in which the child could live, the financial situation of their parents etc.

It is important to note that the decision concerning a child’s residence and contact needn’t necessarily be a battle between parties. It is possible, if a child’s parents are willing to enter into a shared arrangement, where both parents hold equal responsibility.This can mean, for example,that a child spends 50% of their time living with each parent. However, this might not be possible in all cases, particularly where one parent is away from home for long periods of time, e.g. because of work commitments.

The court’s primary concern will be to protect the welfare of the child: the wants and desires of parents are a secondary consideration. It may seem harsh, but this is precisely why the courts are often uncomfortable in making decisions involving families. They would much rather that individuals make such important decisions without their involvement. Where this is not possible, they will only give their approval of a Residence and/or Contact Order that meets a child’s needs.

Contact our Child Custody Lawyers Edinburgh & East Lothian, Scotland

The process of applying to the courts for Orders regarding a child’s residence and contact can be a very stressful experience. It is important that you take some time to find an experienced family lawyer that understands how best to draft an application. At Thorley Stephenson, we have an expert family law team who provide legal advice across a range of family matters. Our specialist knowledge gives us unique insight into the art of drafting legal documents, and affords us a considerable advantage in putting a convincing case before the courts in support of your application.

We understand that you may be experiencing difficulties having recently separated from your spouse, and that the prospect of taking legal action for care of your child may not be a welcome one. Our lawyers have routinely been asked to help clients arrange for court permission for residence and contact with their children, where their estranged spouses have strongly objected.  We take our job very seriously, and will help you every step of the way in ensuring that your child is cared for. We can handle the administrative work in drafting the court application documents, and will also represent you in court where the circumstances warrant it. If you have any questions regarding court orders in respect of children, or are concerned how your children will be affected by your relationship with your partner ending, please contact us now.

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