How did the law regulate custody before?
Under the past regulations – up until the 31st December 2021 – in case the parents did not come to an agreement, the court could only decide on parental custody for the benefit of one parent, even if after careful examination of the circumstances it became clear that joint exercise of parental custody would have been beneficial for the physical, mental and spiritual growth of the child.
Joint exercise of parental custody could only be decided at the request of both parents. In the event that one of the parents objected to joint parental custody, the other parent – who did not exercise parental custody – has usually been relegated to the background in making the decisions regarding the child. The only exceptions to this rule have been the major decisions regarding the child, which remained to be decided jointly by both parents.
What is alternate custody and what does it have to do with joint parental custody?
Alternate custody is not unknown in judicial practice, although it has not yet received a legal background before. Based on the agreement of the parents, parental supervision and contact arrangements have already been arranged in this way before, but the concept has now been clarified and enacted with the new amendment. Alternate custody means that the parents are jointly obligated and entitled to exercise parental responsibility for the same period of time, so they spend exactly the same amount of time with the child. Under alternate custody for example, the child spends one week at his/her mother, and then one week at his/her father. In case one of the parents gets to spend more time with the child – for example where the child spends two weeks at his/her mother and only one week at his/her father – that is no longer considered alternate custody.
According to the relevant laws, in case of joint exercise of parental custody, the court has to decide where the child is going to live, which address must match that of one of his/her parents. The court also has to decide on the time of contact arrangements – which include among others the time and place where the contacting parent can meet the child, contact during holidays, and child support.
It is also important to note that alternate custody is not a direct consequence of joint exercise of parental custody. Alternate custody thus remains as a mere opportunity, which may be decided by the court ex officio, if the court decides that it is in the interest of the child. Joint exercise of parental custody is the basis of alternate custody. Joint exercise of parental custody only means that the parents are obligated and entitled to exercise parental responsibility in equal measures, but this does not necessarily translate to equal amount of time spent with the child, which can shift in favor of one of the parents.
Which circumstances does the court take into account when making its decision?
The court must examine all the relevant circumstances before making its decision regarding the custody. According to the relevant laws the court must take into account especially: testimonies of witnesses, experts’ opinions, pedagogical opinions and environmental studies. In case of alternate care it is important that the parents cooperate with each other, therefore the court may also decide on mediation between the parents.
Is the amendment applicable to ongoing procedures?
The amendment of the Civil Code is only applicable to procedures started on or after the 01st January 2022. This means that for any procedures initiated before, the past laws remain applicable.
The amendment to the law itself calls for the court's decision-making power to be extended beyond the previous regulation, thus helping to ensure that the final decision is in the best interests of the child. According to the current legislation, the court can already decide on the joint exercise of parental custody at the request of one of the parents. Thus, the legislator has built a legal institution that is already relatively widespread in Europe into the system of domestic family law regulation, the effect of which can be observed from the judicial practice of the following years.
In case you have questions or need legal help regarding divorce or any other related family law cases, please contact our office. Our experienced experts are at your service!