Family Law: Custody

Custody and parental rights

One of the most serious problems that spouses must face after a divorce is that of the custody of the children of the matrimony. Added to the usually sad circumstances surrounding a divorce (or separation, in the case of non married couples), when the couple has children, the rights of these children and whom to assign the liability of support and maintenance, become issues that in many occasions must be eventually ruled by a Judge.

The fact that there are an increasing number of matrimonies in which the spouses are of different nationality, only adds another angle and complication to the matter of the children’s maintenance, support, visiting rights and general wellbeing.

The European Union (EU) was sensible to the all previous and aimed to set clear rules within its members. In view of the numerous issues and conflicts of jurisdictions that the Judges were facing, the UE brought together in a single legal instrument the rules and provisions of divorce, separation and parental responsibility. This instrument is the Council Regulation 2201/2003: “Concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility”.

This is an essential rule on the matter, enforceable in all signature countries of the European Union (except from Denmark) from March 2005.

This instrument, however, does not rule on the following matters: child´s names, maintenance, establishing and challenging paternity, emancipation, inheritance and trusts. All these topics are ruled by separate and specific regulations.

The general rule and main spirit of the regulation is the priority to the child’s right to maintain normal relations with both parents. Also, that the child will have the right to make his or her views known on all aspects of parental responsibility, in view of his or her age and degree of maturity.

The regulation applies to civil proceedings relating to divorce, separation and marriage annulment, as well as to all aspects of parental responsibility. Parental responsibility refers to the full set of rights and obligations in relation to a child’s person or property. In order to ensure equality for all children, the regulation covers all judgments on parental responsibility, including measures to protect the child, independently of any matrimonial proceedings.

In general, matters relating to parental responsibility come under the jurisdiction of the courts of the EU country of habitual residence of the child. In certain cases of relocation, that is of a lawful change of residence of a child, where the courts of the EU country of the former residence of the child have already issued a judgment on parental responsibility (particularly as concerns rights of access), this matter continues to come under the jurisdiction of the courts of that country.

Moreover, the spouses may accept the jurisdiction of the divorce court to also decide on matters of parental responsibility. In certain cases, the parents may also agree to bring the case before the courts of another EU country with which the child has a close connection, such as, for instance, the nationality of the child.

Where a child’s habitual residence cannot be completely established, the EU country in which the child is present will assume jurisdiction by default. Where it is not possible to define jurisdiction on the basis of the specific provisions laid down by the regulation, each EU country may apply its national legislation.

An important aspect of the regulation is that it provides automatic recognition of all judgments without any intermediary procedure being required. A judgment on the exercise of parental responsibility can be declared to be enforceable in another EU country on the application of an interested party (and, in the case of the UK, after it has been registered for enforcement, i.e. abolition of exequatur, or process for validation of foreign judgements). The decision on the application for a declaration of enforceability may be appealed against. The enforcement procedure is governed by the national law of the EU country of enforcement.

A distinction has to be made between a judgment acknowledging rights of access and the practical arrangements for exercising such rights. The judge in the EU country of enforcement can determine the practical arrangements for exercising rights of access if the necessary procedures have not been specified in the judgments by the courts of the other EU country in which rights of access were granted. In determining these practical arrangements, the judge must at all times comply with the basic elements of the judgment conferring the right.

Each EU country designates one or more central authorities to exercise several functions, in particular to:

promote exchanges of information on national legislation and procedures;
facilitate communication between courts;
provide assistance to holders of parental responsibility seeking to recognize and enforce decisions;
seek to resolve disagreements between holders of parental responsibility through alternative means such as mediation.
As a general rule, the regulation replaces the existing conventions between two or more EU countries that concern the same matters. It will prevail over certain multilateral conventions on relations between EU countries that concern matters governed by the regulation.

Child abduction

In order to combat child abduction (unlawful removal or retention of the child) in the EU, this regulation also sets rules on child abduction.

By general rule, the courts of the EU country in which the child was habitually resident immediately before the abduction continue to have jurisdiction until the child is habitually (and legally) resident in another EU country, subject to the assent of all persons holding rights of custody and a minimum period of one year of residence.

The court in question, that one which will understand of the claim of abduction, must issue its judgment within six weeks of the case being submitted to it. The child is heard during the proceedings unless this appears inappropriate due to his or her age and degree of maturity.

The courts of the EU country to which the child has been abducted can only refuse return of the child if there is a serious risk that return would expose the child to physical or psychological harm. However, the judge must order the child’s return if it is established that adequate arrangements have been made to ensure the protection of the child after his or her return.

If a court rules that a child is not to be returned, it must transfer the case file to the competent court of the EU country in which the child was habitually resident prior to removal. This court takes the final decision as to whether or not the child is to be returned.

The judge must give the child and the parties concerned the opportunity of being heard and must also take into account the reasons and the evidence based on which the first judge ruled that the child was not to be returned. If the judge in the EU country of origin reaches a different decision, i.e. that the child should be returned, this judgment is automatically recognized and enforceable in the other EU country without the need for a declaration of enforceability. The judgment cannot be challenged.

Visit our family law page for more information.