Custody of Children in Scotland | Thorntons Family Law

In Scotland, the term child custody is no longer used. The correct term is Residence.

Residence is the term used to describe where children normally reside. For most parents, this is not an issue and the parties are able to decide easily with whom their child or children should reside. For others, it can be contentious and there may be a need for legal advice and guidance as to what might be the best way forward to resolve the problem. While court action can be considered, this is usually a last resort while other avenues are explored, such as negotiation or mediation.

Frequently asked questions

The following are some of our most frequently asked questions when it comes to residence of children.

I think I need a Residence Order, what should I do?

The court will only grant such an order if it considers that it is in the best interests of a child to do so and if it is better to grant an order than not at all. You may not need a court order at all if there is no dispute as to where the child is to live. The ethos of the Children (Scotland) Act 1995 is to interfere as little as possible in your family life and not make unnecessary orders.

You should consider taking legal advice and we can consider your circumstances with you to see if you might need to ask the court to grant a residence order in your favour.

Can I move the children to another country after our separation or divorce?

It is essential that if you are contemplating such a move that you obtain early legal advice and to do so before moving. Where both parents have parental rights and parental responsibilities then such a move will require the consent of both of them. If the consent is not given then it may be necessary to ask the court for an order to permit such a move. If the consent is not sought or you move regardless then you risk court action being raised against you, and possibly an order requiring you to return the child. Obviously this could have significant implications for you and your children.

Do the children have a say in who they might live with?

The court has to give a child the opportunity to express a view as to where and with whom they are to live and to take that view into account. It is presumed that a child aged 12 or over has sufficient maturity and understanding to be able to express a view. Children under 12 are also usually can be given the opportunity to express a view too but the court is not required to take that view into account and it may carry less weight. Clearly a very young child is unable to express a view and so in those circumstances their view is unlikely to be sought. It is important to realise that this is an opportunity for the child to express a view and not an expectation that he or she must do so. Whatever the court decides is appropriate will depend on the overall facts and circumstances of the case and what is in the best interests of the child.

What if I think the care arrangements regulated by a court order are no longer in my child’s best interests?

It is essential that you comply with any existing court order that is in place otherwise you may be considered to be in contempt of the order. This could have serious implications for you. Such an order may be varied if it can be shown that there is a material change in circumstances and it is in the best interests of the child that the variation is made. Early legal advice is recommended so that variation of the order can be considered with you.

How can Thorntons help?

If you are unable to resolve issues of residence with their other parent, you should speak to a family lawyer to find out about the options open to you. Our family law solicitors can help you with information and legal advice on any child related issue you are facing. While we are experienced court practitioners, we view court as a last resort measure and can provide advice on the negotiation of agreements and other alternative dispute resolution methods such as mediation, collaboration and arbitration.

At Thorntons Family Law, we offer an initial free no-obligation chat over the phone to outline your options and the possible costs.

Depending on your case and circumstances, the next step is to come into one of our local offices to meet a Family Law Solicitor about your case and the way forward.

Call us on 03330 430 150 for a chat or contact us to book an appointment.

How much will it cost?

We are always clear to clients about the potential costs of any option and offer a range of payment options. In some cases we can offer clients a fixed price package. If we cannot offer a fixed price service, we charge based on the time we spend on your case, including meetings, emails, phone calls and court representations. Depending on your case and circumstances, you may also need to cover outlays, such as court costs or payments to independent experts. We will set out our fees and likely extra costs for you at the start and keep you informed of any possible changes as your case progresses.

Please note we do not offer Legal Aid for this service.