Child Custody Issue

[Alicat58]

My friend's wife left him in August 2014, taking their children aged 6 & 14 with her and verbally agree shared custody with no legal involvement. This arrangement worked until September this year but now the divorce is about to go through and his wife has denied him any access to his boys for 2 months.
She has gone away on holiday and left the boys with their grandmother and has been told by his wife the police will be called if he tries to take them to stay with him.
Under Scottish law, does anyone know if he is not entitled to have custody of his children if the mother leaves them? Surely as their father with no history of violence or abuse he should be able to take his sons.
The older boy aged 15 has told his father in phone calls that they both want to get away from their mother and my friend(ex-policeman) is being extremely restrained and doesn't want to jeopardise losing them altogether.
Can anyone tell me if he could be arrested if he turns up and takes the boys home until their mother returns?

[BlackadderV]

In the absence of any court order to the contrary I can't see him having a problem. The police may be called but they will have no reason to interfere.

[Alicat58]

I made an error, it was 2013 she left him.

[EDDIE51]

^^ yes the police can do nothing it is an empty threat.
In England a 15 year old is able to make their own decision about which parent they live with and the court will go with their wishes as long as there are no other 'issues'. Not sure if that applies in Scotland.

[Alicat58]

Thanks Blackadder, this is what I have been telling him but she has him scared he will lose them altogether if he rocks the boat.
I am an older woman and had no idea how difficult it is for men when a marriage breaks up. I am going to try and get him to go and see them, even if it is just to take them out for the day!

[Alicat58]

Sorry, meant 2013!

[Sycamore3House]

My brother has a 10 year old and I think when she is 12 she can decide who she lives with. Mother& Father share at the moment half a week each roughly. This was done as part of the settlement not through CSA. A good solicitor will advise against using CSA if possible. This is in England

[murraymints]

He has parental rights..a grandparent has none...police would not get involved..domestic issue...especiallly if the children make it clear they wish to be with dad...even with mother home the children's wishes are considered primarily..

[EDDIE51]

This is the sort of situation where it is infinitely better to get some sort of mutual agreement,( written down if necessary). Once the lawyers start to get involved it gets VERY expensive and usually more acrimonious. But he has every right to see his own children, I am certain of that even under Scots law. The grand parent on the other hand has NO actual legal right to even see the grandchildren so his case is a lot stronger than the grand mothers.
If this case came to an English court the mothers action would show her in a poor light. They now take 'fathers rights' very seriously.

[Alicat58]

Thanks folks, there is a court custody hearing in 10 days and my friend has decided he doesn't rock the boat before then. He has loads of evidence that he has attempted to see them.
I had no idea how much the law seems to work more in favour of the mother in these cases. She walked out on him with no warming and would have taken her back for months before discovering she was seeing someone else.
Since then she has called the police 4 times on trumped up accusations. her 6 year old is now crying in his sleep and bed-wetting. The 15 year old is being left in charge and would move home to live with his dad in a minute but won't, because of his brother.
I don't understand why the police and Social Services believe every lie she tells them and ignores his side of the story!
Sorry, I shouldn't be venting my frustrations for him on this page - I am just so angry about the whole situation - probably because I have no children and am old enough to be his mother.
Thanks for reading this everyone. xx

[EDDIE51]

^^yes if the police were called they would if anything take the fathers side against the grandparents.
I can only speak for English law and here as said, the overwhelming factor is
'The best interests of the children' all else is secondary to that.
In England the 15 year old would be allowed to live with his father even if the mother refused to cooperate.

[EDDIE51]

Has the father got a solicitor? if not he needs one or he can have a friend to help him in court. Could that friend be you? He needs someone to make his side of the story known to the court. We have family courts in England which are a lot more informal than 'regular courts' ( no wigs or gowns for example) again I am not sure of the Scots law on this, we really need a Scottish law expert.

[murraymints]

I don't think there is much differance here in Scotland !

[EDDIE51]

^^ I don't either, but i know Scots law is different in some respects so I can not be sure I am correct.

[SirOracle]

Alicat
If you go to wwwscotlandlaw.org.uk/lawscotland/famhtml

Click on children(Scotland)act 1995 which is on the right hand side.

This should be of assistance to you.