Child Residence (Custody)
Residence (previously known as “custody” in Scots Law) is the legal term used to describe where and with whom a child under the age of 16 years has his or her main home.
In most cases, this is not an issue for a court. The child will very often live with one or both parents
Of course, though, there are circumstances where disputes can arise regarding where a child is to live and with whom.
A person who has full parental rights and responsibilities (PRRs) in relation to a child has the right to have the child living with them or otherwise to determine the child’s residence. A person can also have this right without having all of the other PRRs.
The main situation where a dispute arises is when two people have the right to decide the child’s residence but they disagree about where the child should live.
If you are involved in a disagreement about child residence, the issue can sometimes be resolved by negotiation or mediation.
However, if that is not possible, it may become necessary to apply to the court for a residence order – which will state with whom the child should live.
Residence orders can be in terms that the child lives with a different person at different times. One example would be where an order provides that the child is to live with one parent during school term time and with the other during holidays.
A person applying for a residence order does not necessarily have to have PRRs already in relation to the child. An example would be a grandparent’s application for a residence order.
Who is eligible to seek a residence order?
Anyone who can claim an interest can apply for a residence order in respect of a child.
This seems very wide but is generally accepted to mean anyone who has a genuine interest in the welfare of the child.
As you would expect, the most common applicants for residence orders are parents, grandparents, siblings and other close family members. But you do not need to have a biological relationship with the child to be able to apply for a residence order.
A court must regard the welfare of the child as the paramount consideration when deciding whether to grant a residence order.
The court must also take into account the views of the child, having regard to the age of the child and the maturity of the child.
Children aged 12 or older are presumed to be old enough to express a reasonable view on the issue of residence and, in practice in many cases, the opinion of a child of that age or above will be decisive.
The court will also take account of the views of younger children, if they wish to express them.
In general terms, the older the child, the more likely the court is to give weight to their views but the court’s view of what is in the child’s best interests is always the final test.
Contact us for help
If you have any questions regarding a matter relating to child residence, or any other aspect of our Family Law services, please feel free to contact us on 01343 544077 (Elgin office) or 01309 672126 (Forres office) or send us a Free Online Enquiry.
All initial enquiries are free of charge and without obligation.
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