Residence (sometimes colloquially referred to as “custody”) is a legal term used to describe where and with whom a child under the age of 16 years old lives. Usually, the court is not involved in this and the child lives with one or both parents or sometimes with members of his or her extended family.
There are, however, circumstances where disputes arise over where a child lives and with whom.
A person with full parental responsibilities and rights (PRRs) in relation to a child has the right “to have the child living with him [or her] or otherwise to regulate the child’s residence”. A person can also have this right without having all of the other PRRs. Disputes can arise, however, where two people have the right and disagree about where the child should live.
In this situation, you may be able to resolve the matter without going to court, by negotiating or using a collaborative approach or mediation. Where it is not possible (or not appropriate) to resolve the dispute in this way, you can apply to the court for a “residence order” which will state with whom the child should live. It can provide that the child lives with different people at different times; for example, one person during the school holidays and another person during the school term.
A person who does not have PRRs can also apply to the court for a residence order in their favour. A residence order could be granted, for example, to a child’s grandparent if it was not suitable for the child to reside with his or her parents for any reason.
Who can apply to court for a residence order?
The general rule is that anyone who can “claim an interest” can apply for a residence order in relation to a child. This is commonly accepted to mean anyone with an interest in the welfare of the child. Most often applicants are parents, grandparents, siblings or other family members but residence orders are not limited to these. You do not need to be biologically related to the child to apply for a residence order.
The welfare of the child is always the court’s paramount consideration when granting a residence order. The child’s views are also taken into account, where appropriate. Depending on the age of the child, his or her views may be a key factor for the court. Children of 12 years or older are presumed to be old enough to express a view and the court is likely to place strong weight on this. The court will also consider the views of children under 12 years of age, if they wish to express them, and these views could also be a decisive factor depending on the circumstances and the child’s age and maturity.
If you are thinking of applying for a residence order in relation to a child or just want some more information about residence then contact us.
For information on contact (sometimes referred to as “access”) click here.
Schedule a call back Schedule a Call
Related Posts
Everything you need to know about the new Children (Scotland) Bill
Last week the Scottish Parliament unanimously passed the Children (Scotland) Bill. The Bill will now become law, bringing with it some of the most significant changes to the family court ...
The difficulties of obtaining an order to relocate with your child
When relationships between parents break down, it is not uncommon for the parent with whom the child resides, to want to relocate elsewhere. Given the heightened emotions involved, it can be ...
Families Need Fathers…as well as Mothers
Attending Families Need Father’s Scotland meetings on a regular basis clearly highlights that there are still issues surrounding father’s involvement with their children post separation in Scotland. Fathers often feel excluded ...
Dr Foster and Lessons in How Not to Co-Parent
As family lawyers, if Dr Foster shows us one thing then it is exactly how you do not co-parent children following on from a separation. This week the BBC aired the ...
