When a couple with children under the age of 16 years decide to separate, decisions must be made in relation to where the child (or children) live, who the child lives with, and the level of contact which will take place between the child and the non-resident parent going forward.
In the majority of families, these arrangements can be dealt with by agreement directly between the child’s parents. However, a separation can be a very difficult and emotional time for parents, and discussions surrounding the arrangements for the care of the children can become fraught. Where parents are unable to agree on the post-separation care arrangements for their child, solicitor involvement can become inevitable, helpful and necessary.
There are a number of ways in which solicitors can assist with the care arrangements for children. The first steps would usually be to write to the other parent setting out what a client is seeking by way of contact/residence.
1. Minute of Agreement
If negotiation is successful, and agreement can be reached, parents may wish to enter into a formal written agreement recording the arrangements for contact and/or residence in relation to the children. (Please note that Minutes of Agreement may also be used to record financial agreements in relation to a separation, or in relation to maintenance for the children.)
Minutes of Agreement are signed by both parents in front of witnesses, then registered in the Books of Council and Session. They are very useful for recording the agreement reached in relation to care of the children. They are not, however, enforceable in the same way that a court order for contact or residence is.
2. Mediation
Where agreement cannot be reached, some families find the use of mediation services to be of assistance. Mediation is a service which allows parents to meet together, with a trained mediator. The mediator would work with the parents and assist in promoting communication between the parents, and help them to reach an agreement in relation to the care of the child or children. This is often seen as a useful tool prior to legal action, to resolve the matters which are capable of agreement and, where necessary, to identify and focus the issues which remain in dispute.
Mediation is a service which can be arranged through solicitors, or by parents directly with a mediation service provider.
3. Court Action
Where negotiations have been unsuccessful, and agreement cannot be reached, parents may require to have the matter brought before the court. A Sheriff would receive the written case of each parent and hear both parent’s position at a court hearing called a Child Welfare Hearing. The Sheriff may then make an interim order for contact and/or residence, or continue the case in order for more information to be provided, or investigations to be carried out.
If you require advice in relation to contact and/or residence, or have been served with court papers in relation to a court action for contact or residence, one of our experienced solicitors would be happy to provide you with advice on this, or any other family law matter such as separation and divorce. Please contact one of our family law solicitors based in Edinburgh, Bathgate, Dalkeith and Musselburgh.