FAQs

A child’s name can be changed through National Records of Scotland (https://www.nrscotland.gov.uk/registration/recording-change-of-forename-and-surname-in-scotland). A parent who has parental rights and responsibilities can object to the child’s surname being changed, although this opposition can be over-ruled by a court decision. In a recent name change decision (https://www.sharedparenting.scot/wp-content/uploads/2019/12/name-change-decision.pdf) the children were given the surnames of both parents.

If possible, try to persuade the mother to add your name. There are forms for you and her to fill in and this adds your name to the birth certificate. See here for more details. If she doesn’t agree to do this, you can raise it in court at the same time as obtaining a contact order. If she disputes that you are the father you can ask for a DNA test – do this via the Child Maintenance Service if you are being asked to pay maintenance.

An assessment of child maintenance remains in place for 12 months unless income has increased or decreased by at least 25%.  If your income change is 25% or more, request a revision or supersession. Lesser changes will be included in the annual recalculation. Other changes such as an increase in the number of nights that a child stays with you above the 52, 104 or 156 night thresholds in the past year, becoming responsible for a child in a new family or a 16-19 year old child leaving full-time, non-advanced education will reduce maintenance liability.  Further details can be found here or by contacting Child Maintenance Options.

The Child Maintenance Service only deals with child maintenance for parents living in the UK (or working abroad for a few UK agencies). See this link for information on how to deal with maintenance from someone who lives in another country.

We have recently launched the Shared Parenting Scotland website and are continuing to develop the content, please bear with us whilst this happens. In the meantime, if you have specific questions, please contact us (https://www.sharedparenting.scot/contact/)

If separated parents cannot agree on the amount of money that has to be paid to the parent who has the majority of care of the children then the Child Maintenance Service formula is used.nnThis calculation is based on the income of the paying parent and the number of children that have to be supported.  Factors such as the number of nights the children spend with the other parent and whether that parent is also responsible for maintaining other children. Further details can be found here or by contacting Child Maintenance Options

If your court action requests time with your child at Christmas remember that the sheriff will only consider the childrens feelings, not yours. Some sheriffs will agree to splitting the day between parents, whereas others are more likely to agree to let you have them on Christmas day on alternate years. You might even come up against a very old-fashioned sheriff who feels that children should be with their mother at Christmas. Your lawyer should know what the local sheriff are like. Try asking for what you think is reasonable but be prepared to back down quickly if there is resistance – if you can show you are being reasonable and willing to negotiate that will strengthen your case. See the factsheet on Christmas.

The Domestic Abuse (Scotland) Act 2018 introduces penalties for abusive behaviour towards a partner or ex-partner that a reasonable person would consider would be likely to cause physical or psychological harm to that person.  We consider LINK that the controlling behaviour in some contact disputes could be within the scope of this legislation.  The Act has only been in force since April 2019 and we wait for this to be tested in court.

An appeal judgement overturned a non-harassment order which would have prevented a father from seeing his children after he had been convicted of breach of the peace. In the appeal judgement, delivered by Lord Brodie, it was concluded that as the children in this family were not the victims for which the non-harassment order was made, the original Sheriff was wrong in making an order that would prevent contact with them.

Married parents with children under 16 have to include consideration of arrangements for their children if they are divorcing or dissolving a civil partnership.  Try to reach agreement about these arrangements, using the parenting agreement guidelines.  Family mediation will help you reach this agreement, but if you still can’t agree it may be necessary to go to court.

For older children, it is sometimes best to pick up and drop off children at school, rather than at the house of the other parent. Handovers can be a hard to manage both for parents and children, and if arguments cannot be avoided then this is one way to make things easier. Children can find the transition from one parent to the other very difficult, as it a time when their loyalty to each of their parents is tested. It’s not unusual for children to become withdrawn or distressed at this time, which sometimes leads to both parents getting the false impression that something is wrong in the other household. Try your best to remain calm and positive if the handover is with the other parent, and if difficult things are said just don’t be provoked into responding. Attending a Parenting Apart (https://www.relationships-scotland.org.uk/family-support/parenting-apart-groups) course or training organised by Shared Parenting Scotland helps to build up the skills to deal with these situations.n

There are many ways of dividing the time that children spend with each parent. Factors such are how far apart the parents live, work patterns, the age of the children and whether child maintenance can be agreed can affect what works for each family. Here are some of the patterns that are commonly in use:nnWeek about – children spend one full week in one household and the next week in the other household.nSplit weeks – the children spend four days with one parent then three with the other, reversing this pattern the next week.nDays about – may be best for young children so that they do not spend too much time away from either parent.nnWhen the children are at school age it is also necessary to work out a pattern for the holidays that allows for longer periods with each parent.

During supervised contact a staff member to be present throughout the period of contact.nThe level at which staff members are involved in contact will vary depending on centre policy and the requirements of contact. Generally supervisors will abstain from intervening as much as possible but will provide support to the parties and children where required.nSupervised contact will result in a written report being completed by the supervisor which isnthen sent on to parties solicitors and the court. During supported contact staff members will be present but will not take specific notes or monitor conversations.nnSee our Child Contact Centre User Guide for further information. LINK

If your family law case is being conducted in Scotland you can apply for legal aid, even if you do not live in Scotland.  You will need to show that you can’t afford to pay for legal help yourself, and that the problem is serious.  Legal aid is means tested, so you may be asked to pay some of the cost yourself.  See the Scottish Legal Aid Board SLAB) web site to assess whether you will qualify on financial grounds.  Two types of legal aid are available: advice and assistance to pay for the initial help and legal correspondence, and civil legal aid if the case has to go to court.  You have to use a solicitor, and only some law firms will make legal aid applications – see the SLAB list

A court judgement can only be appealed if you can show that a legal mistake has been made in reaching the original decision.  You cannot just go back over the issues in the case.  It is important to act quickly as there is only a short time available to make an appeal.

If you feel your lawyer isn’t representing you properly or have another complaint you need to discuss this issue with the lawyer and then with the “client relations manager” in that law firm.  If this doesn’t settle your complaint, you should contact the Scottish Legal Complaints Commission (SLCC). See their website and also their booklet on family law complaints. The SLCC may pass some or all of the complaint on to the Law Society of Scotland to deal with “conduct” issues

Both the Law Society and Scottish Legal Aid Board (SLAB) web sites include lists of lawyers who specialise in child contact cases, although the SLAB list only covers law firms which do legally aided work.  The Family Law Association website can be searched to find their members by location or speciality.  Shared Parenting Scotland does not give any recommendations, but we can provide a list of the lawyers who attend our local group meetings

The form that is submitted to court to start a case is called a writ. Subsequent court forms are called “motions” or “minutes to vary”. The initial writ consists of a note of what you are asking the court to decide (craves), background to why this is necessary (condescendence) and a statement of which laws you are using to make this request (pleas in law). See our guide to representing yourself {LINK}.

We always advise people that it is best to have a lawyer if you are taking court, but we know that some people either can’t afford representation or have had such poor legal support in the past that they end up conducting their own case in court.  Our Guide will help you LINK and we may also be able to  link you with a lay supporter LINK.  It is also worth trying to find a lawyer who can comment on what you are putting on the court papers before submitting them.  There will be a cost for this service, but it costs far less than full representation and can help you avoid making errors in the way you present your case.

You call the sheriff  “My Lady” or “My Lord”.  The other thing that you have to do in court is to stand up when the sheriff enters at the start and also when he or she leaves the end of the hearing.  A court official will say “Court Rise” when this is due to happen.  In theory you should stand up when saying things to the court, but in many child welfare hearings the sheriff will indicate that this does not need to happen.  Don’t worry too much if you don’t always manage to do these things, as long as you can show that you are taking the court seriously and showing respect.  Remember also that the sheriff can see your facial expressions very clearly, so don’t react with grimaces or shaking your head when things are said that you don’t agree with.  (Most family cases are heard in the Sheriff Court, but the same applies to Court of Session hearings.)

Proof hearings, in which both sides present evidence in support of their case,  only happen in a small proportion of family court cases, when agreement cannot be reached.  Obtaining sworn affidavits from your witnesses and ensuring that all relevant information is lodged with the court are important parts of the preparation.  If you are representing yourself you need to prepare questions for witnesses.  Our guide to representing yourself in the family court covers this topic in more detail.

Wear a suit if you have one or at least a shirt and tie and smart trousers (not shorts even if it is hot). Women should also dress in smart or businesslike clothes. Although there are no rules about what to wear it is far better to show you are respecting the court and the importance of the hearing by dressing in this way. Remember that you will be under the radar from the moment you step into the court room so don’t make gestures or faces when the other side says something provocative – just keep calm and try to relax.

Despite a recent comment by a senior Scottish Judge that “The time taken to resolve disputes about contact should not be measured in years but in weeks or at most months.” LINK it usually takes at least two months to raise a court case in Scotland.

If you have been arrested in connection  with a contact dispute the police will try to ask you questions, saying that this is your chance to say what happened.  Resist this temptation and give a “no comment” answer to these questions until you have taken advice from a criminal lawyer. We give this advice because it can often be inadvisable to say anything at this stage of the process, apart from giving your name, address and age.

Remember that your lawyer is undertaking a professional service for you and try to keep your enquiries to the practical aspects of your case.   It is very likely that you also need emotional support and reassurance if you are experiencing a separation and not seeing your children, but try to avoid using your lawyer for this more than is absolutely necessary.   Your legal bill will increase substantially if you ask too many questions.   If you are receiving legal aid remember that legal aid rates are not generous, and lawyers who are being paid through legal aid may be restricting what they do to the most important aspects of the case.

Bearing in mind the above advice, do take action if your lawyer is not answering key legal questions – see Complaints against lawyers LINK

Parents who rely on housing benefit may only be able to take shared accommodation without bedroom space for their children to stay with them. Most single people under 35 in the private rented sector are restricted to the shared accommodation rate (SAR); their housing benefit is set at a level to cover the rent on a room in a shared house. New applicants may have to apply for Universal Credit rather than Housing Benefit. For further information on housing issues see the Shelter Scotland (https://scotland.shelter.org.uk/get_advice) or Citizens Advice Scotland (https://www.citizensadvice.org.uk/scotland/) sites.

The 1995 Children (Scotland) Act says that the court should allow a child to express views and have regard to them as far as possible.  It also says that the court should take account if the child’s age and maturity and that “a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view” (section 6). The 2020 Children (Scotland) Act removes this mention of age 12.  Although that legislation hadn’t been enacted at February 2024 the court will now consider the views of much younger children.  Whatever the age, the views of a child are not the deciding factor, although the older the child the more impact their views will have on the final decision.

If a move means that it will be more difficult to maintain regular contact with the children it may be possible to oppose this move in the court or have the children returned.  Each case will be considered on its own circumstances, and the court will decide on the basis of what is best for the children, not what is best for one of their parents.   You cannot prevent the other parent from moving, but it may be possible to stop a move by your children.nnIt is possible to object to a move within Scotland or to another part of the UK, not just to a move to another country.  Don’t delay in taking action, as it is harder to force a return if children have settled in a new location.

When civil legal aid is applied for to take a case to court the Legal Aid Board writes to that person’s opponent to tell that that legal aid is being considered.  This letter will include a copy of the applicants statement about the case.  You can write to the Legal Aid board giving reasons why you oppose legal aid.  This can either challenge whether they are financially entitled to receive legal aid or say that it is unreasonable for public money to be spent on the case.  For example, you could say that an offer to take part in family mediation has not been accepted.  Further information is available on the Legal Aid Board site

If the children are being taken to live outside the UK you can take action to have them returned so that a Scottish court can decide whether this removal should be allowed.  Consult a lawyer who has experience in such cases and see the Scottish Government guidance.  If the children have been taken to a country which is part of the Hague Convention this process will be easier.  You can also seek support from the Central Authority for Scotland and Reunite If the children are simply being taken for a holiday, you should have been asked to give your agreement if you have parental rights and responsibilities. Rather than making this into a conflict, we suggest that you should agree to holiday trips and offer to provide the other parent with a letter giving your authority in case there is any problem when leaving the UK. In return you can ask for details of the trip. Trying to stop a holiday trip won’t be popular with the children, and if you go to court to try and stop it you may find that a sheriff will allow the trip and you risk being accused of controlling behaviour.

Some types of child vaccination such as MMR have attracted opposition, and this is also happening with Coronavirus vaccines for children. If parents don’t agree whether a child should be vaccinated, the matter can be raised in court. The matter becomes more complicated if only the mother has parental rights and responsibilities or if a child is in care of the local authority. A recent English court judgement  endorses the wisdom and efficacy of vaccination and places the onus on the parent who opposes vaccination to raise court action to stop the vaccination – see this roundup article for more background. A more recent English judgment applies this to Covid vaccination

At present there are various ways for obtaining children’s views during a dispute about contact. The court can issue an form-f09 (https://www.sharedparenting.scot/wp-content/uploads/2019/12/form-f09.doc) for children to indicate their views. The sheriff can talk to a child or order a Child Welfare Reporter (https://www2.gov.scot/Resource/0049/00498001.pdf) to prepare a report to court. The legislation that is being currently considered by the Scottish Parliament will include consideration of a range of other ways in which children can give their views and also whether feedback can be given to them about what the court decides. Shared Parenting Scotland considers that it is also very important to let the child know that their views are important but will not be the deciding factor, and also that any person who is obtaining children’s views should properly trained. If the Scottish Parliament also incorporates the UN Convention on the Rights of the Child into Scottish law there may be further changes.n

When a contact or maintenance request is made, the response is sometimes to deny paternity. DNA testing (https://www.gov.uk/get-dna-test) now provides a quick and reliable way of establishing who is the father of a child, but it can only be carried out if the parent with responsibility for a child agrees for samples to be taken. If testing is refused, a court can make a presumption of paternity in certain circumstances.

Look on your local council web site to see if they run any suitable classes, or try contacting organisations like Parent Network Scotland (https://www.parentnetworkscotland.org.uk/) or Mellow Parenting (https://www.mellowparenting.org/). A Google search should show up smaller local organisations in your area. You may find that some classes say that they are only for parents who have contact with their child – try politely and firmly to persuade them that you need the training to help resume contact.

Before the mediation starts, each parent has their own intake interview with the mediation service to discuss what needs to be discussed and to explain how mediation works. After this mediation can start to involve both of you. Normally you then meet together with the mediator, although sometimes the parents sit in different rooms and the mediator goes between them (shuttle mediation). Either parent can refuse to take part in mediation, which may mean that you have to raise a court action to resolve the dispute.

Proof hearings, in which both sides present evidence in support of their case,  only happen in a small proportion of family court cases, when agreement cannot be reached.  Obtaining sworn affidavits from your witnesses and ensuring that all relevant information is lodged with the court are important parts of the preparation.  If you are representing yourself you need to prepare questions for witnesses.  Our guide to representing yourself in the family court covers this topic in more detail.

Start with the FAQs, which have been written to answer questions that are asked on our helpline, at group meetings or in WhatsApp groups.  When necessary we consult experienced family lawyers to help ensure the accuracy and we try to avoid using legal jargon.  Links to more detailed information are included where possible.  If you can’t find the answer to your question try searching the whole site using the magnifying glass at top right of the screen.  If nothing is found email or phone us with your question.

Yes. Schools get this wrong sometimes. Both parents retain full parental responsibilities and rights.  An order specifying residence and contact does not  eliminate either from carrying out responsibilities or exercising rights.  Detailed arrangements for residence and contact are just that and do not permit a residential parent to control how the other parent fulfils their responsibilities. Contact is not a privilege, it is a duty to be exercised in the interests of the child.nnIn terms of the Scottish Schools (Parental Involvement) Act both parents are entitled to their own relationship with the school. In the Guidance to the Act it is explicit that involvement by parents is encouraged. Both parents will have to have PVG clearance before accompanying children, for example, on a school trip. Ideally parents will cooperate on this. If they can’t, be sympathetic to the difficulty of the school in negotiating a solution when both parents want to volunteer. Perhaps propose that parents can alternate as helpers but excluding the non-resident parent without reason is not an option.