A Guide to Child Custody Agreements in Scotland

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Deciding on the suitable arrangements for your child can be difficult after a separation or divorce. This guide will answer questions you may have when deciding on a child custody agreement.

What is a Child Custody Agreement? 

A child custody agreement, also known as a parenting plan, is a voluntary agreement that happens when the parents of a child separate or divorce. They will need to decide where the child will live and how they will support their child after the separation.

How Does a Child Custody Agreement Work?

A child custody agreement doesn’t have to have any official paperwork if both parents agree with the arrangement. It is optional whether they write the agreement down or not, however, it may be helpful to have it documented. 

The child custody agreement could include: 

  • Whom the child will live with, or if there will be shared custody.
  • When they will spend time with the non-resident parent and with extended family.
  • How they will spend school holidays and birthdays.
  • How financial support (child maintenance) will be provided.
  • How both parents will communicate with each other.
  • How new partners will be introduced into the child’s life.

If the parents have difficulties reaching an agreement, then a mediator or solicitor can help overcome these issues. 

How to Make a Child Custody Agreement Legally Binding

To make your child custody agreement legally binding, you can ask a solicitor to create a ‘Minute of Agreement’. The document will be drawn up, stating the terms you both agree on in the presence of a solicitor without the need for formal court action. However, the agreement can be enforced the same way a court order can.

What Will Happen if Parents Cannot Agree on a Child Custody Agreement?

If parents cannot agree on a child custody agreement, then a court may need to intervene by enforcing a residence order which will determine which parent the child will live with. The residence order can be made in favour of one parent, both parents or a third party such as an aunt, uncle, or grandparent.

A residence order can be implemented if there has been violence or abuse or if the parents cannot agree on the terms.

What is a Residence Order?

A residence order favours one parent or family member. The court will only grant a residence order if they are convinced it’s in the child’s best interest and that they will be well cared for. The court will allow the child to express their views in the manner that the child prefers (if they can form a view). This will only be considered if it is reasonable to accommodate the child’s preference.

A contact order is usually implemented with a residence order. A contact order relates to how a parent maintains contact with a child up until 16 years old. The contact can involve telephone calls, visits, night stop-overs, weekends or holidays. 

How Long Does a Residence Order Last? 

A residence order ends when a child becomes 16 years old. However, the order can be extended until they reach 18 years old. 

At What Age Can a Child Choose Which Parent to Live With in Scotland?

Once a child reaches the age of 16, they are legally allowed to choose which parent they want to live with.

How Does Joint Custody Work?

Joint custody, also known as split custody, works by each parent spending equal time with their child. As long as both parents have parental rights and responsibilities, they will have equal involvement in essential decision-making in the child’s life. 

Benefits of Joint Custody

The benefits of joint custody are that it allows both parents to build a good relationship with their child. Joint custody is the closest environment to how life was like before the child’s parents divorced or separated. Both parents will have equal involvement in key decision-making and have significant involvement in the child’s upbringing. In addition, the responsibility is shared between the parents making it less stressful for both of them. 

Can a Father Get Joint Custody?

As long as the father has parental rights and responsibilities, he can have joint custody if both parents agree with the decision. However, if both parents do not agree, then this is where a residence order will need to be put in place by a court. 

What are Parental Rights and Responsibilities? 

When a parent has parental rights and responsibilities, they can be involved in caring for and looking after the child, how they are brought up and where they should live. It gives the parent the right to make decisions for the child. However, they are not absolute and are considered alongside the welfare and best interest of the child.                                                                                                                                                                                                                                           

Do I Have Parental Rights and Responsibilities for my Child? 

A Mother’s Rights and Responsibilities

In Scotland, the mother automatically has parental rights and responsibilities when the child is born. However, a court can remove these rights and responsibilities under certain circumstances. 

A Father’s Rights and Responsibilities

The child’s biological father only has automatic parental rights and responsibilities if they are:

  • Married or have a civil partnership with the child’s mother when the child was conceived.
  • Registered on the birth certificate with the child’s birth mother (after 4 May 2006).
  • Married or entered into a civil partnership with the child’s birth mother after the child was conceived.
  • Have signed and registered an agreement with the child’s birth mother.
  • Granted from court.

If a child is born before 4 May 2006 and the father is registered on the birth certificate but isn’t married to the mother, then they will have no parental rights and responsibilities. 

By having no parental rights and responsibilities, the father would have no legal authority to decide for the child. To be registered as the child’s father, he must do one of the following: 

  • Ask the courts to grant the rights and responsibilities (the mother does not need to give her consent).
  • Complete a Parental Rights & Parental Responsibilities Agreement (PRPRA) (with the approval of the mother).
  • Marry the child’s mother.

Do You Need Family Law Advice From a Solicitor? 

If you are in Scotland and you are seeking assistance with child custody agreements or any other aspects of family law, we recommend you get in touch, and one of our expert solicitors.


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