It is illegal to move a child without the consent of the other parent

Child care settings

The child who was the subject of the Constitutional Court’ s ruling was entrusted to the mother’s care, with the understanding that she would see her father six days a month (one afternoon and weekend per fortnight). The father always picked him up and handed him over again at the mother’s place of residence. Both parents’ homes were in the same town.

There are several options for after-divorce care for children. Basically, these are care:

• Sole custody by one parent – the prevailing model of post-divorce child custody and support arrangements. The child is entrusted to one parent (usually the mother) with the other parent determining when the child may be seen and setting child support.
• Alternating custody is increasingly coming to the fore. Under this, the child lives alternately with one parent and the other parent, for example, at intervals of one week or 14 days. However, the specific timetable may be set in terms of days. The advantage is that the child has contact with both parents. The disadvantage may be the child’s frequent moves or the difficulty of visiting school, clubs or friends. It is therefore worthwhile for the parents to live close to each other and at the same time to be in agreement on at least the basics of the child’s upbringing.
• It is also possible to establish a maintenance obligation in this case. Typically, if one parent has a significantly lower income than the other, or if they agree that one parent will pay most of the costs (clothes, clubs, etc.) and the other parent will pay the relevant part of the bill.
• Joint custody means that both parents continue to share equally in the upbringing of the child. However, there needs to be maximum agreement between the parents on how this type of parenting will work in practice. In this case, the court does not in fact impose any obligations as to which parent takes care of the child on which day. Joint custody may be appropriate, for example, in families that continue to live together after a divorce or, conversely, in situations where the children are older and do not share the household with their parents most of the time (for example, they attend boarding school in another town).
• The last option is to entrust them to the care of another person. This applies to situations where the court does not find either parent fit to care for the child. For example, a grandmother or other close person, or possibly another person or educational institution, may take care of the child. The parents are ordered to pay maintenance.

However, such rules were not without problems, which were announced by both parents. The mother sought to further restrict the child’s contact with the father and filed a petition with the court to that effect. She justified this on the grounds of long-standing disagreements and the impossibility of effective communication. The father was also dissatisfied with the set course of the transfer of the child and filed both an application for enforcement of the contact order and later also an application for the child to be placed in his sole custody.

Moving with the child

The mother moved with the child almost 500 kilometres away, changed her son’s permanent residence without the father’s or the custody court’s consent, enrolled him in a local primary school and with a local paediatrician.

According to the Civil Code, parents exercise parental responsibility by mutual consent. If there is a risk of delay in deciding on a child’s matter, one parent may decide or give consent himself; however, he must immediately inform the other parent of the state of affairs. At the same time, if one parent acts alone in the matter of the child vis-à-vis a third party who is acting in good faith, he shall be deemed to be acting with the consent of the other parent.

In other words, either parent should not decide alone on a change of residence or school unless there is the aforementioned risk of default.

Moving one parent is of course possible, but the arrangements for the child’s contact with the other parent and the need for both parents to agree should be a priority.

However, in the case under review, the mother’s move effectively prevented the child from seeing the father. He therefore brought an application for interim measures for the temporary custody of the minor, for the designation of a primary school in the place of the family’s original residence and for the designation of a paediatrician there. A similar application was also lodged by the OSPOD.

The guardianship court first granted the OSPOD’s application and ordered an interim measure temporarily entrusting the child to the father’s care. However, the mother appealed, and the Court of Appeal granted the appeal, dismissing the OSPOD’s motion. Although the mother had changed the minor’s permanent residence without the father’s consent, the court held that it could not be concluded that the minor’s normal development had been endangered. The Court of Appeal also rejected the father’s application for a “normal” interim measure (or confirmed the first instance court’s decision in this respect). While the Court of Appeal acknowledged that the actual implementation of custody was very difficult, it did nothing in fact to remedy the situation.

Following the decision of the court of first and second instance, the father argued that his constitutionally guaranteed rights to protection against unwarranted interference with his private and family life had been violated. He therefore sought annulment of the decisions of those courts.

The Constitutional Court upheld the appeal, holding as follows: A child has the right to the care of both parents equally and the rights of both parents to care for the child have equal weight. The best interests of the children must be taken into account as paramount in all decisions concerning custody and access to the child.

The Constitutional Court has likened the situation to domestic abduction and has held that, like international abduction, the fundamental rights of parents and minor children are violated in these cases.

In the opinion of the Constitutional Court, it is the duty of the courts to react in such cases and they must take into account the relocation of the parents in their decision on the modification of access or maintenance obligations. Moreover, it is appropriate that the parent who has moved away should also make a sufficient contribution to balancing the obstacles associated with the child’s access to the parent at a greater distance, for example, by ensuring that the transfer of the child for access should in principle take place at the child’s place of original residence. This is, after all, a decision by one parent which should not be penalised by the other.

In the opinion of the Constitutional Court, the courts were obliged to ensure effective protection of the fundamental right to family life of the child and his father, although the specific solution did not have to be the change of sole custody proposed by the father in his favour. However, account should have been taken of the significant distance between the two parents and the need to change

The Constitutional Court expressly acknowledged that the mother had acted unlawfully in this respect. However, as already mentioned, the reaction of the courts need not be to turn the situation 180 degrees by punishing the mother and giving the child sole custody to the father (as he himself requests). On the other hand, it is necessary in the given situation to determine the contact with the child, in particular the place and manner of handing over the child. It is not possible for the negative consequences of the mother’s unlawful conduct to be borne by the father without more. The courts should, by their decision, allow him at least some form of contact with the child. They may, for example, use the means of a non-motion for interim measures.