Who Gets Custody of the Children? Understanding Scottish Law

When parents separate, one of the most difficult issues to resolve is who the children will live with and how much time they will spend with each parent. In Scotland, who the children live with is commonly referred to as “custody”, although the legal term is now “residence”. More often than not one parent will have residence, and the other will have “contact”.

This article explains how Scottish law approaches decisions about children, what rights parents have, and how the courts become involved when agreement cannot be reached.

The Legal Framework

In Scotland, the law governing decisions about children is mainly set out in the Children (Scotland) Act 1995 and the Children (Scotland) Act 2020. These Acts make it clear that:

• The child’s welfare is the paramount consideration.
  This means that every decision – whether made by parents, advised by solicitors, or the ordered by the court – must be based on what is best for the child, not what either parent wants. The court looks at the child’s physical, emotional, and educational needs, as well as their relationships with each parent and other family members.
• The child’s views must be taken into account.
  If the child is under 12 years of age and are considered mature enough to express a view and understand the implications of it, the court must consider it. . There is no fixed minimum age. However,  the court must take the views of children aged 12 although their views will still not be determinative.   Children of 12 and above are presumed to have sufficient understanding to express a view.
• The minimum intervention principle applies.
  The court will only make an order if it is necessary to protect or promote the child’s welfare. If parents can reach their own agreement, that is usually preferred.

 

Parental Responsibilities and Rights (PRRs)

Under Scottish law, parents who have Parental Responsibilities and Rights (PRRs) have the legal authority to make decisions about a child’s upbringing, care, and welfare.

• Mothers automatically have PRRs.
  A child’s mother always has PRRs, regardless of her marital status.
• Fathers may or may not have PRRs.
  A father automatically has PRRs if he was married to the child’s mother at the time of the child’s conception or later, or if he is named on the child’s birth certificate (for births registered after 4 May 2006).
  If not, he can acquire PRRs by entering into a Parental Responsibilities and Rights Agreement with the mother or by applying to the court for a Section 11 Order.
• PRRs include the right to decide where the child lives, the right to have contact, and the duty to promote the child’s welfare.
  Holding PRRs does not automatically mean a parent will have the child living with them, but it gives them a say in important decisions such as schooling, medical care, and religion. With Parental Rights comes Parental Responsibilities and the two are not standalone.

 

Residence and Contact

When parents separate, they may agree informally where the child will live and how contact will take place. If they cannot agree, the court can make:

• A Residence Order – deciding where the child will live. This could be with one parent or shared between both.
• A Contact Order – setting out when and how the child will spend time with the parent they do not live with. Contact may be direct (in person) or indirect (by telephone, video call, or message).

Courts increasingly encourage shared care arrangements where this is practical and in the child’s best interests. However, shared care does not necessarily mean equal time – it depends on what arrangement best supports the child’s stability and welfare. Shared care arrangements rely on an effective co-parenting relationship and often in separating couples this can prove difficult.

 

How the Court Decides

If the matter goes to court, the sheriff will consider all relevant factors.

• Best interests of the child.
  The court will look at emotional bonds, the stability of each home, the child’s schooling, and continuity of care.
• The child’s views.
  These may be obtained through a Form F9 (a written form), through a child welfare reporter, or by the sheriff speaking with the child directly.
• Evidence from both parents and other witnesses.
  The court may consider statements from relatives, teachers, or other professionals to help determine what arrangement serves the child’s welfare.
• Any history of domestic abuse or neglect.
  Courts take allegations of abuse extremely seriously. The 2020 Act strengthened protections by requiring the court to consider any risk of harm before making an order.

 

Court Procedure

If no agreement can be reached, an action can be raised in the Sheriff Court.

• Initial Writ.
  The parent seeking an order will lodge an Initial Writ explaining what orders are sought and why.
• Defences.
  The other parent may respond, setting out their position.
• Child Welfare Hearing.
  The sheriff will usually fix a Child Welfare Hearing early in the process to encourage agreement and ensure the child’s interests are protected. These hearings are less formal than other court appearances and focus on finding practical solutions.
• Further Hearings and Proof.
  If no agreement is reached, the case may proceed to a full hearing (known as a proof), where evidence is presented and the sheriff makes a final decision.

 

Alternative Dispute Resolution (ADR)

Parents are encouraged to resolve matters outside court where possible.

• Mediation.
  A neutral mediator helps parents communicate and reach agreement about residence and contact. This is voluntary but can be very effective.
• Collaborative law.
  Each parent has a solicitor, and all parties commit to resolving matters without going to court.

These methods can reduce stress, save time, and help maintain better long-term relationships for the child’s benefit.

 

Changing or Enforcing Orders

Circumstances can change as children grow older. Either parent can apply to the court by Minute of Variation to vary an existing residence or contact order if there has been a material change in circumstances.

If a parent fails to comply with a court order, the other parent can apply to enforce it. This is done by a Minute for Contempt. The court has powers to impose penalties or amend the order to ensure the child’s welfare remains protected.

 

Key Takeaways

• The child’s welfare always comes first.
• Both parents may share Parental Responsibilities and Rights.
• Residence and contact are determined by what arrangement best serves the child.
• The child’s views are important and must be considered.
• Court involvement should be a last resort, with mediation often a better first step.

 

Conclusion

Decisions about where a child lives and who they spend time with are some of the most sensitive in family law. While parents may not always agree, the law in Scotland is designed to protect the child’s welfare above all else. Early legal advice can help parents understand their rights and responsibilities, explore alternative dispute resolution, and ensure that any decisions made are in the best interests of the child.

For tailored legal guidance, please contact our experienced Family Law solicitors on 01259 723 201 or contact help@randa-fa.co.uk and we would be delighted to assist.