Ruth Alexander: Star status is no guarantee when determining child custody

Published on Thursday 23 October 2008 22:37

RUTH ALEXANDER Family law associate at Russel & Aitken

ANOTHER celebrity divorce, another multi-million-pound settlement. One could be forgiven for feeling a sense of dj vu when the news was announced last week.

Celebrity divorces are big business, and Madonna and Guy Ritchie's split is a break-up made in tabloid heaven.

Who said what, and who did what seem less important in a celebrity divorce than who gets what. Generally, the bigger the star, the greater the pay-out.

It all seems a world away from the average divorce settlement being hammered out between couples and their solicitors in Scotland every day of the year.

However, there is one area in the process in which the status of the celebrity, or the size of the bank balance, makes little difference to the outcome, and that is the residence of the children – previously known as "custody".

However big the star and however great the wealth, the courts will apply the same principles as they would in any other case to ensure that decisions are made in the best interests of the children. The welfare of the child is paramount and the courts are required to apply that principle whoever, and whatever, the parties to the divorce might be.

The two main orders that the courts can make relate to residence and contact. A residence order usually requires the child to live with one parent, but can provide for the child to live with each parent at different times.

A contact order is one made in favour of the person with whom the child will not be living.

It is, of course, hoped that agreement on where children will live and the time they spend with each parent can be reached without going to court. However, if agreement can't be reached through solicitors or mediation, it might be necessary to apply for an order and let the court decide who the children should live with and how much contact they should have with the other parent.

In Scotland, the courts will look at the relationship children have with their parents, siblings and others involved in their care. There is a tendency by the courts to keep children of a family together as much as possible, and they are usually reluctant to order children of the same family to be brought up in different households.

That said, where children have been separated and settled with a particular parent, the courts will sometimes decide that it is in their best interests to remain where they are.

Every case is different, and the Ritchie divorce will be no exception. In today's complex world, the courts can often be faced with challenging issues in the whole area of residence orders.

A child adopted by a married couple is treated, in all respects, as their natural child, and because parents have rights and responsibilities for all natural children, adopted children are included in this category.

Either parent can apply to the courts to obtain a residence order to regulate where that child lives. However, a step-parent, or one who is not the biological or adoptive parent of a child, does not have automatic parental rights.

Nevertheless, it is still possible for such a parent to apply to the courts to obtain a residence order on the basis that they have an "interest" in the child.

This would be an interesting step, and one that would need careful thought as it would be significant that the other party was the biological mother or father, a factor difficult to overcome in the event of a dispute.

The courts might also look at the welfare and education of the children, in addition to their racial origin, culture and background. Additionally, the courts require that the views of the children, should they wish to express them, be taken into account, particularly if they are 12 years old or more.

Rich or poor, famous or unknown, divorce is not easy for anyone, least of all the children.

It is hoped, however, that some comfort can be gleaned from the principle that the welfare of the child is paramount at all times and that the courts are under an obligation to apply this principle, Material Girl or not.