When will a court grant shared care in Scotland? 

When parents separate or divorce, one of the most critical decisions involves the arrangements for their children. In Scotland, the legal system prioritises the child’s welfare, and there’s no automatic entitlement to 50/50 custody, also known as shared or joint custody, for either parent. Instead, the courts focus on what is in the best interests of the child. There are different factors that influence decisions about joint custody and what parents should consider.

Understanding the legal framework

Scottish family law does not use the term “custody” anymore; instead, it refers to “residence” and “contact” to describe where a child lives and the contact rights of a non-resident parent. The Children (Scotland) Act 1995 is the primary legislation that governs these matters, and it emphasises that a child’s welfare is the most important consideration

There is no presumption in favour of either parent based on gender. The focus is on creating a fair parenting plan that meets the child’s needs.

Factors influencing custody (contact) decisions

When determining child arrangements, Scottish courts consider several factors: the child’s physical, emotional, and educational needs, their views, taking into account their age and maturity and the likely effect on the child of any change in circumstances. It also considers child’s relationships with parents and other family members, such as grandparents and any risk of harm to the child.

These factors help the court decide what arrangement will best serve the child’s interests. This could range from the child living primarily with one parent to an equal sharing of time with both parents. Courts also assess the parents’ behaviour and its impact on the child, the stability of each parent’s home, and the mental and physical health of both the child and parents.

When is joint custody (contact) favoured?

Joint custody, or shared residence/care, is favoured when it serves the child’s best interests. Courts are more likely to grant joint care when both parents demonstrate a willingness and ability to collaborate on parenting decisions. This includes an ability to communicate and cooperate in matters related to the child’s upbringing.

Shared arrangements should not disrupt the child’s routine or well-being, with the focus on maintaining a stable and nurturing environment. Logistics such as the proximity of parents’ residences and the child’s schooling are also taken into account as parents living relatively close to each other make it easier for the child to transition between homes.

A consistent routine that accommodates the child’s school and extracurricular activities is also a significant factor. Ultimately, the goal is to ensure both parents maintain a meaningful relationship with their child post-separation.

Challenges

In most cases, the court will consider that it is in the child’s best interests for them to have a relationship with both parents; however, in some circumstances it can order that one parent has residence and that it is not in the child’s interest to have contact with the other parent. This may be where there are serious concerns about the safety of the child, where there is evidence of abuse, neglect, or any behaviour that could endanger the child.

In such cases, the court will prioritise the child’s safety and stability, which might mean limiting one parent’s involvement.

How to strengthen a case for shared care

Parents seeking a 50/50 care arrangement should show their ability to provide a stable, nurturing environment, their commitment to co-parent effectively, and their understanding of their legal responsibilities for the child.

You can strengthen a case for shared parenting by engaging a solicitor specialising in family law to understand your rights and build a strong case and keep records of your involvement in the child’s daily life and major events to substantiate claims for shared parenting time and responsibility.

Demonstrating a willingness to learn and improve parenting skills can be viewed positively by the court and mediation services can be extremely useful to come to an agreement with the child’s other parent, which can be an effective way to reach a suitable arrangement.

Alternative dispute resolution

Before resorting to court, parents are encouraged to explore alternative dispute resolution (ADR) methods, such as mediation. ADR can help parents reach agreements about child arrangements without the need for court proceedings. This approach often leads to more satisfactory outcomes for both parents and children. Consulting a solicitor who can assist with negotiations is also worth exploring before proceeding to court.

In Scotland, shared care is not automatically granted but is considered when it aligns with the child’s best interests. The court’s ultimate decision centres on providing a safe, stable, and nurturing environment for the child. Parents seeking this should focus on cooperation, communication, and the child’s wellbeing to increase their chances of a successful outcome.