Residence and contact orders: The importance of getting it right for your children post-separation

As experienced family lawyers, we are frequently asked to deal with disputes on behalf of clients involving residence and contact to children (formerly custody and access/visitation). These terms are used to refer to the living arrangements for children of separated parents. The parent with residence is the one with whom the child principally resides, and contact refers to the time that a child spends with the non-resident parent. These can also be known as the care or shared-care arrangements for children.

Family break up is often a distressing time for children as well as adults, and frequently children would rather their parents reconcile than have to share time between two households, and they can feel placed in a position of conflict if there is dispute about their care arrangements going on between their parents. There is no set formula for how the care and living arrangements for children post separation should be worked out, as each family unit and child is different, and the key is to focus on the children’s needs and interests, so these are at the forefront of decision making. At Livingstone Brown we understand that these can be very difficult decisions to make, and it can be stressful to have discussions with your ex-partner or spouse about child-care matters, at the same time as coping with going through a separation. Our friendly and professional family lawyers are here to support and guide you throughout the process.

HOW DOES THE COURT DECIDE WHO SHOULD HAVE A RESIDENCE ORDER?

A residence order (sometimes known as custody) is an order made by the court (either the Sheriff Court or Court of Session) stating with whom a child or children shall live. This can be made in favour of a parent, or another family member or person who can demonstrate a close connection to the child (for example grandparents, aunts, cousins, kinship carers, or step-parents). The court will look very closely at all the material facts before making any decisions about residence and contact. As well as parental bonding, other issues such as suitability of accommodation and proximity to their schools, will be important to the court, when considering awarding residence, as well as the views of the children themselves. In general terms the courts favour sibling groups being kept together where possible.

Granting a residence order means that the court has decided that it is in the child’s best interests for the child or children to live with that person, and such an order will only be granted where it is demonstrated to be both in the child’s best interests and also necessary and better than no order. Parties are very much encouraged to come to an agreement out-with the court setting in the first instance if at all possible, and the court will only intervene if agreement between parents has been shown to be impossible.

At the same time as a residence order is made, a contact order is often granted to the non-resident parent. This is a specific order that sets out the precise times the other parent or person will spend with the child on a weekly or monthly basis. As well as regulating routine weekly contact, which often includes overnight stays, known as “residential” contact, the court can also grant extended contact periods during school holidays, known as “residential holiday contact”.

Parties can and frequently do agree all this between themselves, without requiring the courts to intervene, and if the arrangements can be agreed directly between parties, such as by way of mediation or lawyer led negotiations, court action is not required, and the terms of the agreement can be incorporated into a formal document known as a Minute of Agreement.

WHAT DOES SEEKING A RESIDENCE ORDER INVOLVE?

To raise an action for residence in the sheriff court, you will require to lodge an initial writ with a crave (claim) for a residence order in your favour. This is regulated by section 11 of the Children (Scotland) Act 1995. If the action is defended, an order for written defences will be made and the court will assign a Child Welfare Hearing which takes place in private court where the court will hear from both parties, normally via their agents, and then decide which “interim” orders to make. The court may also instruct a child welfare reporter, who is an independent experienced family lawyer appointed by the court to prepare a report known as a child welfare report (previously a bar report) which looks at all of the circumstances of the child and their family. This report can often be very helpful and allow parties gain insight and perspective and reach agreement, or help the court to come to a decision.

The court is very unlikely to make any final or determinative decisions at this stage, but often matters are regulated by the court on the basis of “interim” contact or residence orders, which remain in place during the court of the action. Quite often once interim arrangements commence and are monitored by the court, they progress over time by agreement and it leads eventually to a negotiated settlement of the action.

If final agreement cannot be reached, such as when there are factors in the case like domestic abuse or serious child-care concerns that may preclude contact, or if both parents want residence and neither will compromise, there may require to be a proof, which is a full evidential hearing, to decide who the child should have their principal residence with, or whether any contact should take place. In the case of a proof, the court will hear evidence from parties and witnesses usually over a number of days in order to make “findings in fact” and decide the appropriate final orders to make in the child’s best interests. The court will then issue a written decision or judgement detailing findings in fact and law and the reasoning behind its decision.

The court has as its paramount consideration the best interests of the child. This means that the court is concerned at the forefront of its decision making about what is best for the child at the centre of the action. The court, as a result of the Children (Scotland) Act 2020, is now required to obtain children’s views over the age of five, however these views are not determinative. The older a child is, the more weight their views tend to be given. For more information on this point, please refer to our detailed news article about the views of children in family actions.

If the residence action is undefended, the person who has raised the action can ask the court to grant a final order in their favour. They will need to lodge Affidavits (sworn statements) in support of their request for residence. If parties can reach agreement about residence out-with the court setting, this would be incorporated into a Minute of Agreement, with various clauses setting out the detailed child care agreement the parties have reached.

HOW LONG DOES A RESIDENCE OR CONTACT ORDER LAST?

Once a final residence and/or contact order is made by the court, it will last for the duration of childhood, which is until age 16 in Scotland. However, at any stage prior to this, either party can seek to have the order varied, by minute to vary procedure, on the basis of a “material change in circumstances”. The party seeking to return the action to court by way of a “Minute of Variation” is known as the Minuter and the other party is known as the Respondent. The Minuter must be able to demonstrate there has been a significant change affecting the child-care arrangements since the date of the original order, before the court will become involved again. The matter could also be returned to court if either party fails to comply with or “obtemper” the order, which would proceed by way of a different procedure being an action for Contempt of Court. The court has powers to severely punish a parent who is found to be in wilful breach of a contact or residence order, and has the power to impose a fine or even in extreme circumstances, imprisonment. 

Here at Livingstone Brown we have over 35 years of experience in family law matters and deal regularly with contested residence and contact order actions in the Sheriff Court and the Court of Session. Whilst we encourage our clients to attempt to resolve matters out-with the court setting where possible, via mediation or collaborative practice, we understand that in some situations litigation is unavoidable, and at Livingstone Brown we have the years of experience and honed advocacy skills to ensure your position is protected and your case is presented in the way that is most likely to achieve your aims. Please do not hesitate get in touch with our empathetic and approachable family law team, to explore all your options fully.