The Constitutional Court dealt with a case where the child’s mother had moved 500 km away, effectively preventing the father from seeing his child. According to the Constitutional Court, such a move should be taken into account in the child custody arrangements, with the proviso that the obstacles associated with the move should lie rather on the side of the parent who took the move.
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.
Tip: There are several options for post-divorce childcare. Basically, there are several options for care:
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.
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.
Are you going through a divorce?
We will guide you through the divorce process from negotiating with your spouse, through filing for divorce, to getting a judgment. We negotiate with due tact, but also with the necessary firmness in order to achieve the best possible outcome for you, your property and your children.
Tip: 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 is obliged to 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.
Tip: If circumstances change, the court will change the decision regarding the exercise of the obligations and rights arising from parental responsibility without a petition.
Dostupný advokát team of online lawyers will solve it for you.
We will walk you through the whole process step-by-step from filing to court approval. Will will also ensure the best possible settlement for you, your children and your property. We proceed quickly, discretely and with experience. You may also pay after services are provided.
Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.
My grandparents wanted to give me an apartment, but I was extremely busy at the time and couldn’t afford to put any time into finding out what I needed to do. I also had no idea how to get the transfer of ownership handled at the Land Registry. Dostupný advokát arranged everything for me, and (zobrazit více) the apartment transfer was legally arranged with no issues. Thank you and thumbs up!
Dostupný advokát updated the terms of a contract for our web portal studentino.cz, to insure that they were in strict accordance with the GDPR (General Data Protection Regulation). The entire process was done online and for reasonable price.
My boyfriend and I had the lease contract for our first apartment checked by Dostupný advokát and were glad to learn about our rights, and all the steps we needed to take.
TheMinistry of Justice has introduced an amendment to the law to further simplify the divorce process in court. The primary goal, according to the drafters, is not to make divorce an easy matter, but to eliminate outdated legislation. What will this amendment bring to our clients who are considering divorce?
