When couples with children separate, often the focus is (understandably) on the day-to-day care arrangements for their children – with whom will they live and how much time they will spend in the care of each parent. Usually this is centred around term time and school holiday arrangements, but what about special occasions? With Mother's Day approaching this year on Sunday 30 March, we consider whether parents have a right to see their children on such occasions, and what steps can be taken to avoid conflict around important family celebrations.
Legal position
In Scotland, parents with parental rights and responsibilities have a responsibility to maintain personal relations and direct contact with their child on a regular basis, and they enjoy the corresponding right to maintain the relationship and to have direct contact. However, this right is balanced against the rights of the child. It does not mean that separated parents can see their child whenever they choose, nor does the law provide a minimum amount of time or set days for a parent to spend with their child. The paramount consideration is always the child's welfare, and parents must agree (or the court will determine) what is in the child's best interests.
When parents are separated, neither parent has an automatic right to be with their child on special occasions – whether that be Mother's or Father's Day, birthdays, or other important religious or cultural occasions, and this can become a source of friction.
Problems can arise when contact arrangements restrict or complicate a parent's ability to spend time with their child, notably when special occasions fall on a day when the child is due to be with the other parent. As contact arrangements often involve weekend time being shared between parents, Mother's Day and Father's Day can present a particular difficulty and require negotiation, which can be a big ask when, in many cases, the parents no longer see eye to eye.
Co-operation and compromise are key
Open, and respectful communication, is essential to come to a mutual agreement or compromise and to avoid the need for legal intervention. Parents should try to agree in advance what will happen on certain special occasions, or to change routine care arrangements from time to time to enable the child to share and enjoy family celebrations with both parents. Of course, if mum expects to have the child with her on Mother's Day, it is reasonable for there to be a reciprocal arrangement around Father's Day. Early planning can help to avoid arguments and upset. A resolution could be based around setting aside an agreed period on these days, or alternatively parents may agree to "swap" contact weekends if the child is due to be with the other parent that day.
Arrangements for Mother's Day or Father's Day can be particularly problematic for same sex separated parents. They could agree to alternate Mother's or Father's Day each year, or to split the day in such a way that the child is able to spend part of the day with each parent. No matter the family make up, the aim should be to find a solution which works for all concerned and which keeps the child at the centre of the decision making .
Similar kinds of arrangements can be made in relation to other special days too – such as family birthdays, and other important celebrations.
What if my former spouse or partner won't agree to contact?
If agreement cannot be reached, there are various options separated parents can consider such as:
Negotiation
It may be necessary to consult a solicitor, who can write to the other spouse or partner (or their solicitor) to try to negotiate a compromise acceptable to both parties. In some cases, parents may wish to set out some or all the childcare arrangements (including special occasions) in a formal legal agreement, known as a Minute of Agreement.
Or another option is for each party to appoint their own collaboratively trained lawyer and they and their respective lawyers all agree to resolve matters collaboratively by way of joint meetings in order to achieve a resolution tailored to the needs of the whole family.
Mediation
If communication breaks down, mediation can be a helpful route and particularly useful where parents cannot agree on a specific matter concerning their child. The mediator, who is impartial and specially trained, can facilitate discussions between parents to explore the issues which are important to them and encourage them to agree arrangements that will work for parents and child. Mediation is a more a cost effective and less stressful alternative to going to court.
Court Proceedings
Asking the court to intervene in arrangements for special occasions should be a last resort, particularly where the court has not been asked to regulate other aspects of the child's care arrangement. However, it is open to either parent to ask the court to make an order providing for the child to be with them on specific days during the year. If the court is asked to regulate other aspects of a child's care arrangements, it may be worth considering whether birthdays, Christmas and other special occasions should be dealt with too. This will not be necessary in every case, but it can help to avoid conflict later.
It is always worth considering whether you need to include arrangements for special occasions when discussing how a child's care will be shared following a separation. Clear guidance on how this may work can ease the stress around these occasions. For advice about any aspect of childcare arrangements and help to navigate the legal complexities following a separation, please contact one of our divorce lawyers.
Contributor
Legal Director
