What is child custody in Scotland?
In Scotland, people often talk about 'child custody', but the law doesn't use this specific term. Instead, custody is dealt with using two main types of court orders:
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residence orders - which say who the child lives with
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contact orders - which set out how the child spends time with the parent they don't live with
Most parents, however, don't need to go to court. They can often reach an informal agreement about what's best for their children.
Whether you're agreeing arrangements informally or applying to a court for one of these orders, the first thing to understand is who has the legal standing to make decisions for the child. This is known as having 'parental responsibilities and rights'.
Who has parental responsibilities and rights?
Parental responsibilities and rights (PRRs) are the legal duties and rights you have to make decisions about your child's life, like their education and health.
In Scotland, a child's birth mother automatically has PRRs. A father automatically has PRRs if he:
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was married to the child's mother when the child was conceived (or married her later)
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is named on the child’s birth certificate
The rules for same-sex partners are similar. For example, a birth mother’s female partner who was her civil partner or wife at the time of fertility treatment will also have PRRs. Other non-birth parents (including same-sex partners) can get PRRs by being named on the birth certificate, making a formal agreement, or getting a court order.
If you're a father who doesn't automatically have PRRs, you can get them either by making a formal agreement with the mother or by applying to the court. Having PRRs doesn't stop if you separate or divorce.
For a full explanation of what PRRs include and the detailed steps on how to get them, read Parental responsibility.
How can we make informal arrangements for our children?
The best approach is usually for parents to agree on arrangements themselves. This is faster, cheaper, and far less stressful than going to court.
You can make an informal plan that sets out who the child will live with and when they'll see the other parent. The Scottish Government provides a ‘Your Parenting Plan’ to help guide you.
If you struggle to agree, services like mediation or collaborative family law can help. Collaborative family law involves you, the other parent, and your specially-trained lawyers all meeting together and signing an agreement not to go to court.
Bear in mind that a court will not be able to enforce an agreement reached informally. To make your agreement legally binding, you can formally record it in a separation agreement. You can Ask a lawyer for assistance with this.
What court orders can a sheriff make?
If you can't agree, even with help from mediators, you may need to ask the Sheriff Court to decide. The court's main focus is always the child's welfare, and it will only make an order if it's better for the child than making no order at all.
A vital part of any court decision is considering the child's opinion. The court must give any child who is mature enough the opportunity to share their thoughts (eg who they want to live with). The legal presumption is that a child aged 12 or over is mature enough to do this. Younger children can also be heard, and the sheriff will decide how much their views should influence the final decision.
Under the Children (Scotland) Act 1995, the main orders a sheriff can make are:
Residence orders
A residence order says which parent (or other person, like an aunt or a grandparent) the child will live with. This can be 'sole residence' (living with one parent) or 'shared residence'. A shared residence order doesn't necessarily mean the child's time is split 50/50, but it sets out how much time the child will live in each parent's home.
Contact orders
A contact order sets out the arrangements for the child to see the parent they don't live with. Contact can be direct (eg visits or overnight stays) or indirect (eg phone or video calls). The order can be very specific about the times, dates, and locations for contact and pickup if this is necessary to prevent future disputes.
Contact orders can also be made to allow a child to have contact with other relatives or friends.
Specific issue orders
If you and the other parent cannot agree on a specific, important decision about their upbringing, you can ask for a specific issue order. This asks the court to make a one-off ruling. Common examples include settling a dispute about which school the child should attend, whether they can be taken on holiday abroad, whether a parent can relocate with the child (either within Scotland, the UK, or abroad), or if they should receive a specific medical treatment.
Interdicts
An interdict is a protective order. It's used to stop a parent from doing a specific wrongful act. For example, a court can grant an interdict to prevent one parent from harassing the other, from taking a child out of the country without permission, or from coming within a certain distance of your home or your child's school.
However, an interdict cannot by itself remove a parent from the family home if they have a legal right to be there (eg they are a joint owner or tenant). To do that, you would need a more powerful order, called an exclusion order, which suspends their right to live in the home. An interdict can then be granted alongside the exclusion order to stop them from returning.
What rights do grandparents have in Scotland?
In Scotland, grandparents don't have any automatic legal rights to see their grandchildren. However, this doesn't mean they have no options. Under the Children (Scotland) Act 1995, anyone who can 'claim an interest' in a child's welfare (which includes grandparents, aunts, or uncles) has the right to apply to the court. You can apply for a contact order (to set up regular contact) or, in some situations, a residence order (for the child to live with you). Such an order may be granted if it’s in the child's best interests.
What about maintenance payments?
Child maintenance is a separate legal issue from residence and contact. It's a regular payment from the parent who doesn't live with the child to the parent who has the main day-to-day care. It helps cover the child's living costs.
You can make a private arrangement yourselves or, if you can't agree, you can use the Child Maintenance Service (CMS). For more information, read Child maintenance in Scotland.
For more information on parents’ legal rights and obligations regarding their children, read Parents’ rights and responsibilities. If you have any questions about your specific situation, don't hesitate to Ask a lawyer.
