Parental responsibilities

Parental responsibilities

In divorce or dissolution cases, the most important concern of the court is the welfare of the children of the family.

The court will need to be satisfied that the arrangements for the children are either suitable or the best that can be achieved under the circumstances.

Parental responsibilities

'Parental responsibilities' refers to the rights and duties to make the important decisions in a child's life. The idea behind the word 'responsibilities' is to show that the parental power to control a child is not for the benefit of the parent but for the child.

The important decisions in the child's life include:

  • Education
  • Religion
  • Medical care

Parental responsibilities also include day-to-day decisions for a child such as:

  • Nutrition
  • Recreation
  • Outings

Who has parental responsibilities?

This area of the law is governed by the Children (Scotland) Act 1995.

A mother is automatically considered to have parental responsibilities on the birth of her child. This is not always the case for fathers.

If the child's mother and father are married at the time of the child's birth, then the father will have parental responsibilities. However, if the parents are unmarried at the time of the birth of the child, the father will only have parental responsibilities if any the following is true:

  • The father has obtained a parental responsibilities and parental rights order from the court.
  • The father jointly registered the birth of the child with the mother after 4 May 2006.
  • The father has entered into a parental responsibilities and parental rights agreement with the mother. This is an agreement in a set form, as specified in the Children (Scotland) Act 1995. This agreement must be registered in the public register known as the Books of Council & Session.
  • The father subsequently marries the child's mother then he will automatically have parental responsibilities and rights.

Scottish parents have various legal responsibilities towards their children. These include:

  • Deciding where they live
  • Controlling their upbringing
  • Acting on their behalf in legal transactions
  • Having contact with them

When the child reaches 16, most of these responsibilities and rights end, although the responsibility to direct and guide a child lasts until the child reaches 18. Parental rights and responsibilities are shared while the parents are living together; they cannot veto each other and disputes can be settled by the courts.

During a divorce or dissolution, the responsibilities and rights of parents and children can be relocated. If cooperation exists, then orders are not necessary. If there is no cooperation, the parent who is to look after the children will need to apply for a residence order. This gives the person who benefits from the order the right to have the children living with them. The other parent retains all rights except this right of residence.

If the parents can't decide who the children will live with, each party has the option to take the matter to court. The court would then make a decision based on what is in the best interests of the child. Children's views on this may be taken into account when making this decision. If the children are 12 or above, their view is presumed valid, and courts are reluctant to go against children over 14 or 15 who express a view. Children under 12 can express a view, but these are not conclusive.

If informal arrangements for contact break down, the court may order these arrangements.

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