Logo Advokátní kancelář roku 2023

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

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.

stěhování s dítětem
8 minutes of reading

Chapters of the article

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.

Tip: There are several options for post-divorce childcare. Basically, there are several options for 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.

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.

Are you solving a similar problem?

Dostupný advokát team of online lawyers will solve it for you.

Divorce

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.

Preset Prices
All services pre-priced for no surprises.
We Do Everything Online
Save time, money and the hassle of travel.
We Work Fast
90 % of issues get solved by the following day.
Experienced Team
We have specialists for every field of law.

Has this content helped you? Give it a rating

No rating yet. Be first to rate and help others.

Author of the article

JUDr. Ondřej Preuss, Ph.D.

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.

Education
  • Law, Ph.D, Pf UK in Prague
  • Law, L’université Nancy-II, Nancy
  • Law, Master’s degree (Mgr.), Pf UK in Prague
  • International Territorial Studies (Bc.), FSV UK in Prague

Reviews of the Dostupný advokát service

Recenze služby

Jan Vrátný, Veselí nad Lužnicí

before 3 years

I work as a self-employed craftsman and I know my field very well. Unexpected events happen, however, and I sometimes have to deal with problems where I need quality legal advice. I don’t like calling legal offices, getting sucked into discussions with terms I don’t understand. Dostupnyadvokat.cz is different. My first time, they replied immediately (zobrazit více) and together we created a contract custom tailored to my exact needs. I continue to be very happy with both their work and their price.

Recenze služby

Ms Magic, Google reviews

before 3 years

Fast and professional solutions for most normal legal needs at affordable, preset prices. Seriously, what could be better than that? While it sounds ‘too good to be true,’ I’m happy to report that the staff at DA are pros, and what’s more they are honestly dedicated to their awesome mission, which is to make quality (zobrazit více) Fast and professional solutions for most normal legal needs at affordable, preset prices. Seriously, what could be better than that? While it sounds ‘too good to be true,’ I’m happy to report that the staff at DA are pros, and what’s more they are honestly dedicated to their awesome mission, which is to make quality legal services affordable for the average person. I find their prices very fair when compared to what I’ve usually paid for similar services, which means I (and my family and friends) can get the legal help I need without worrying about some black hole of never-ending fees. In my own experience with DA I’ve found everyone there very responsive, and emails and calls are answered in a timely manner. Their large staff also gives me confidence that any legal needs I have can be handled professionally, as there’s always someone with experience in my particular issue. Their head attorney also writes a regular blog and keeps up with all the latest legal trends, which means they as a business stay up-to-date. As someone who’s spent a fortune over the years on legal assistance, or tried to “go it alone” when I couldn’t afford legal help, I wish Dostupny Advokat had been around a long time ago. I highly encourage anyone who needs legal help to TRY THEM FIRST!

Recenze služby

Jan Sekanina, Prague

before 3 years

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!

View All Testimonials

You could also be interested in

About us in public media
Logo Česká advokátní komora Logo Advokátní kancelář roku 2023
Follow the news
Facebook Dostupný advokát Twitter / X Dostupný advokát