In our experience as family and child law solicitors in Glasgow who counsel clients on a daily basis, the procedures involved in resolving disputes are among the most commonly asked issues by clients.

For the vast majority of people who hire a lawyer to resolve a dispute over a child’s residency or contact, it will be their first experience seeking legal aid from a lawyer on family law during a contentious situation.

In order to “ensure the family justice system is supportive and it does not contribute to children’s anguish,” the Scottish Government’s family justice modernisation strategy is said to have as its goal. There is no room for uncertainty when it comes to comprehending the legal processes that include them because, for many divorcing spouses, the outcome for their children is their main concern. As solicitors, it is our responsibility to give legal advice to our clients to navigate this difficult time with as much openness and clarity as possible if they find themselves in a situation of disagreement regarding the care arrangements for their kids.

What exactly are residence and contact?

The terms residence and contact, which are often referred to as access, custody, and visitation, are used to describe the housing and care arrangements for children whose parents have separated. Contact (also known as access or visitation) refers to the time that a child spends with the parent with whom they do not often reside. Residence (also known as custody) refers to the location and person with whom the child primarily resides. This is also known as child care arrangements or shared care arrangements. There is no predetermined formula; instead, it depends on each family’s needs and the requirements and best interests of the family’s children.

What a residence order and contact order for a kid entails

A court order (either the Sheriff Court or Court of Session) declaring who a kid or children shall live with is known as a residential order (sometimes referred to as custody). The court has determined that it is in the best interests of the child or children for them to live with that person. This order can be made in favour of a parent, or another family member or person who can show a close connection to the child (for example, grandparents, aunts, cousins, kinship carers, or stepparent).

The parties may also agree outside of the courtroom that the child will live primarily with one parent and spend time with the other. A residency order and a contact order are frequently combined. In this order, the time that the other parent or individual will spend with the child is specified, including specific days and times. Again, parties may reach a mutual agreement on this outside of court.

How do I obtain my child residence?

This would be resolved outside of court by negotiation, mediation, or arbitration, and would then be recorded in a minute of agreement (a written agreement that sets out the arrangements parties have come to between themselves) 

Either party may request a residence order in their favor from the court if this cannot be agreed upon, if there are other grounds for doing so, such as domestic abuse or on the recommendation of organisations like social work.

If both parents are vying for custody, the other parent or party may also ask the court to issue a residence order in their favour, and it may be necessary to conduct a proof (an evidentiary hearing) to determine who the child should live with on a permanent basis.

To raise an action for residence in the sheriff court, you will require to lodge an initial writ with a crave for a residence order in your favour. This is regulated by section 11 of the Children (Scotland) Act 1995. If the action is defended, your case will move forward to a child welfare hearing where the court will hear from both parties and decide which orders to make. The court is very unlikely to make any final or determinative decisions at this stage. If the 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.