So who should Jolie-Pitt children live with?

When the announcement of the impending divorce of the perfect celebrity couple knocked everything else off the news agenda recently, we should not have been surprised. Shocked, perhaps, at the mention of divorce, but not surprised at its top billing. Celebrity divorces are big business and they don't come much bigger than the Jolie-Pitts.

US film stars Brad Pitt (R) and Angelina Jolie (back C), accompanied by their children, arrive at Haneda International Airport in Tokyo on July 28, 2013. Pitt is now here for the promotion of his latest movie "World War Z". AFP PHOTO / Yoshikazu TSUNO (Photo credit should read YOSHIKAZU TSUNO/AFP/Getty Images)

It all seems a celebrity world away from the average divorce settlement being hammered out between couples and their solicitors in Scotland each day. However, there is one area in the divorce process in which the status of the celebrity, or the size of the bank balance, makes little difference to the eventual outcome of the decision and that is in the area of the residence of the children (previously known as “custody”).

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

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The two main orders that the courts can make are “residence” orders and “contact” orders. 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 (previously known as “access”) is an order made in favour of the person with whom the child will not be living.

It is, of course, always hoped that agreement on where children will live and the amount of time they will spend with each parent can be reached between parents without involving the court.

However, if agreement cannot be reached either through solicitors, mediation or by other means then it might be necessary to apply to the court 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, brothers, sisters and others involved in their care. There is a tendency by the courts to keep children of a family together as much as possible. The courts are usually reluctant to make an order which will mean that children of the same family will be brought up in different households. That said, where children have already been separated and settled with a particular parent then the courts will sometimes decide that it is in those children’s best interests to remain where they are and preserve the status quo.

Every case is different and the 
Jolie-Pitt divorce will be no exception. In today’s complex world with complicated relationships 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. As parents have parental rights and responsibilities for all “natural” children, adopted children are therefore included in this category. Either parent can accordingly apply to the courts to obtain a residence order to regulate where that child lives.

However, a step parent or parent who is not the biological or adoptive parent of a child, does not have automatic parental rights and responsibilities. Nevertheless, it is still possible for such a parent to apply to the courts to obtain a residence order on the basis that he or she has an “interest” in the child.

It is an interesting step to take and one which would need to be thought through carefully as it would be extremely significant that the other party was the biological mother or father, a factor difficult to overcome in the event that there was a dispute regarding residence.

The courts might also look at the moral welfare, education, religious or spiritual welfare of the children in addition to the children’s’ 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. Whether rich or poor, famous or unknown, divorce is not easy for any party involved, least of all the children.

However, it is hoped that some comfort might be gleaned from the overriding principle that the welfare of the child is paramount at all times and that the courts are under an obligation to apply this principle, whoever they might be.

Ewan M Campbell is an Associate and Accredited Specialist in Family Law at Russel + Aitken LLP