Joint parental custody?
According to the rules of the Civil Code, parental custody is exercised jointly by the parents, even if they no longer live together, unless otherwise agreed or ordered by the guardianship authority or the court. Parental rights are therefore normally exercised jointly by the parties.
Did you know? The Civil Code states that the rights and obligations of parents are equal when exercising joint parental custody.
If a divorce takes place and the parties have a child together, the divorce can only be granted by mutual agreement if the parents reach an agreement on, among other things, the exercise of parental custody, the contact between the separating parent and the children and the child maintenance.
Under this agreement, the parties may agree to continue to exercise parental rights jointly in the future. In this case, the child's place of residence must be specified, but there is no need to make specific provision for contact. In practice, this means that all issues affecting children must be decided jointly by the parties.
Did you know? If, in the course of exercising joint parental custody, the parents are unable to reach an agreement in an issue, the issue shall be decided by the guardianship authority, provided that it is not related to the freedom of conscience and religion.
Did you know? Even in the case of joint parental custody, where immediate action needs to be taken, the parent may decide independently in the interest of the child subject to notifying the other parent without delay.
Since the amendment of the Civil Code with effect from 1 January 2022, joint parental custody may also be exercised in a manner that the parents are entitled and obliged to bring up and care for the child alternately and for identical periods of time.
Exercising parental custody
However, what happens if, during the divorce, the parties do not agree on the joint parental custody and only one of them is awarded this right?
When deciding on joint parental custody, the court, taking account of the interests of the minor child, may order that the parents care for the child alternately and for identical periods of time; failing that, the court shall determine the contact arrangements and decide on the maintenance of the child. In the event of an order for joint parental custody, the court shall designate the child's place of residence.
It is important to stress that the court cannot order joint parental custody if either party objects. The reason for this is that joint parental responsibility requires a degree of cooperation between the parties that can be achieved by parents who are willing to reach an agreement.
The court therefore decides which parent has parental custody rights, taking into account the best interests of the child, and may also decide on the division of those rights at the request of the parties.
According to the previous legal provision, when the parents' marriage was dissolved, a decision had to be made on the "placement of the children", and this terminology of the word lives on in the public mind to this day. However, the change does not only affect the name, the content has also changed and the placement of the child now means placement with a third party other than the parents. Under the rules in force today, a decision is made on the exercise of parental rights.
This means that if the court authorises one of the parents to exercise parental custody, the parent living separately from the child may not exercise parental custody rights, except for substantial matters affecting the future of the child.
The law sets out the rights and obligations of both parents and expects the parties to continue to cooperate for the healthy development of the children. I.e.
§ the parent exercising the parental custody shall regularly inform the parent living separately about the child’s development, health and studies;
§ the separated parents exercise their rights jointly in substantial matters affecting the future of the child.
What are the substantial matters affecting the future of the child?
What is considered to be a substantial matters affecting the future of the child is also set out in the legislation, which is given substance by case law. These are the following:
§ determining and changing the name of the minor child,
§ determining his place of residence if other than his place of domicile shared with the parent,
§ determining his place of residence abroad for an extended period of time or for the purpose of settlement,
§ changing the nationality of the child,
§ and choosing the school and career path of the child.
Please also note that these entitlements can be extended. The court may authorise the parent living separately from the child to perform certain tasks related to caring for and bringing up the child, and exceptionally, to exercise property management or, in the property matters of the child, statutory representation, in whole or in part.
On the other hand, if the interest of the child requires, the court may restrict or withdraw the right to decide in certain substantial matters affecting the future of the child.
Summary
The above therefore means that parents who live separately from their children are not excluded from all decisions affecting their children. However, this is not only a right but also an obligation which both parents must respect.
