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How to avoid Madonna’s court custody battle

Jackie McRaeThe legal dispute between Madonna and her ex-husband Guy Ritchie over where their teenage son Rocco should live has highlighted the acrimony that can quickly spiral out of control when former lovers feud.  

While most separated couples live their lives out of the headlines, the superstar singer’s decision to resort to the courts thrust her – and the couple’s child – into the unwelcome limelight, with the family’s frustrations being played out in the world’s media.

She may be used to courting publicity but the most important issue at the core of such a dispute – for any family – is the welfare of the child.  Limiting the emotional damage caused by warring parents,  ensuring that the child’s voice is heard and the best solution found for a distressing situation, are of paramount importance.

While there are differences in various countries’ legal systems, the principle of putting the child’s best interests at the heart of any decision-making remain fairly constant worldwide.  And an amicable agreement, reached without the intervention of the courts, is by far the best way forward. 

At pagan Osborne, we find that alternative methods of dispute resolution are almost always preferable to legal action.

In the case of 15-year-old Rocco, he had been living with his mother in the United States but left to visit his father in the UK and has not returned to America. He reportedly wants to stay in the UK but Madonna began legal action seeking his return. A New York court decided he should go back.  However the teenager,  who is said to be finding the family dispute “very difficult”, remains in the UK, where Madonna has taken her fight to the English high court. 

When they disagree about the best way forward, people often think their only option is to go to court, especially in a dispute involving children, but that is not necessarily always the case. Communication and listening to the child’s voice is vital and it can be possible to come to an arrangement through mediation, where parents can discuss and try to agree arrangements for their children with help from a skilled and impartial third party.

Just as in this case, the courts in Scotland strongly encourage parents to reach their own agreement about what is best for their child rather than have the court decide matters for them.

If a dispute about where a child should live does go to a Scottish court, the three main principles are: that the welfare of the child is paramount; that the views of the child should be asked for and properly considered although the court may not necessarily do what the child says they want, and that a court cannot make an order in relation to a child unless it is better for the child than not making an order.  

Scots law no longer talks about which parent has ‘custody’’ of a child’ or ‘access’, these old-fashioned terms have fallen out of use.  The law now deals with how decisions should be made about with which parent shall normally live – ‘residence’ – and how much time they spend with the other parent – ‘contact’.  The courts will start from the point of view that a child needs both of his parents to be involved.  They will encourage parents to work together to support their child as best they can in coming to terms with family breakdown.

It is enshrined in Scots law that a child aged 12 or over, is presumed capable of expressing a view and that their view must be taken into account. They can also instruct their own solicitor. But even in cases where children are much younger the court will want to find out what the child thinks about any big changes being proposed in their family situation.  In many cases a court will be reluctant to overrule a child’s wishes about where they want to live and at 16 they can make that decision for themselves.

In England parents have parental responsibility up until their child is 18, meaning an English court could make a residence order for a 17-year-old.  

In Madonna and Guy Ritchie’s case judges on both sides of the Atlantic have urged the couple to come to an amicable settlement, something I would fully agree with.

The most corrosive thing for a child in such a situation is the conflict between their parents and it’s also a dreadful model for future relationships. If parents could find a way to put their personal feelings about their former partner aside and get along better there would be far fewer cases which end up in court battles like these.

Jackie McRae is head of Pagan Osborne’s Family Law team. She is also a qualified social worker and has extensive experience working with children and families. If you have any questions about separation, divorce or child contact, email Jackie or call 0131 226 4081.

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