Exercise of parental custody
The court seized of the divorce case is obliged to regulate the status of minor children and their parents. The parents’ rights and duties towards their common children must be determined precisely. The question of parental custody is one of the most complex issues to be handled the case of divorce. According to the law, when deciding on the sharing of parental custody and modes of exercise thereof, particular attention must be paid to the ‘best interest of the child”.
Agreement on the exercise of parental custody
In the course of divorce or separation proceedings, the spouses may execute a written agreement regulating the pattern of exercise of parental custody and frequency of parental contacts. If no such agreement can be made between the parties, the court shall determine the pattern of exercise of parental custody by both parents and frequency of parental contacts, considering the child’s right to be brought up by both parents. In such a case, the court may entrust the majority of custody to one of the parents, and limit it in the case of the other parent to certain duties and rights. In exceptional circumstances, the court may even consider a petition for termination of either spouse’s parental custody over the child. In many cases, when the dispute among the spouses aggravates, help of a professional attorney may turn out to be indispensable.
Parental custody – unmarried couples
The exercise of parental custody and parental contacts in the case of parents of minor children who have never been married may also be determined by the court. Also in this case, if the parents break up with each other, they may file motions for termination of parental custody, determination of the child’s place of residence, pattern of exercise of parental custody or limitation thereof, parental contacts and child maintenance money.
Attorneys in parental custody proceedings
Considering the fact that sharing of parental custody and contacts with children is often a good breeding ground for conflicts, especially bearing in mind the emotional burden involved with such process, professional legal assistance may turn out to be invaluable. If both parties are represented by their attorneys, their face-to-face contacts may be significantly reduced, and all key issues may be negotiated by professional lawyers.
What aspects have to be determined?
There are many issues which must be regulated by the court. Determination of the place of residence of minor children and allocation of parental custody are the most crucial decisions. Parental custody over minor children may be entrusted to:
– their mother,
– their father,
– their mother, where their father still retains a limited parental custody over the children,
– their father, where their mother still retains a limited parental custody over the children
-both parents, which is the most frequent outcome.
Another decision to be made is that concerning the child’s place of residence. This can be defined as each and every residence address of his/her mother or father and a specific locality. When determining the pattern of exercise of parental custody, the parties should determine which parent or perhaps both will take final decision on matters such as: vacation, travelling abroad, healthcare issues, medical interventions, education, extracurricular classes and other key issues, depending on a specific situation. Taking into consideration the number and complexity of issues which need to be regulated, the parties will find asserting their rights much easier if supported by an experienced lawyer.
Motion for termination of parental custody
It should be noted that no decision concerning the sharing of parental custody and mode of exercise thereof is irrevocable. Each parent may at any time file a motion for termination of parental custody in the case of the other parent. Obviously, such request shall be fulfilled by the court only if the other parent neglects the child or acts to his/her detriment. This also happens when exercising shared custody is obstructed by one of the parents, or in case of a gross violation of the agreement on exercising parental custody and maintaining parental contacts.
Division of property vs. children
Although the division of property is not strictly connected with custody over minor children, when conducting the proceedings concerning the division of the joint property of spouses, such as e.g. a family house, the court will obviously take into account which parent exercises parental custody and resides with the common children. In some cases, when parties negotiate on the sharing of their property, children and parental contacts are used as trading cards. For e.g. one of the spouses agrees to renounce some of his/her assets in favour of the other one in return for more frequent parental contacts and broader custody over their common child. It should be observed that in many cases property and custody matters intermingle in the event of breakdown, even if the case of unmarried couples. In such a case, reaching agreement in just one matter such as e.g. exercise of parental custody and parental contacts is not possible without regulating all other legal issues emerging after divorce or separation – i.e. reasons for divorce, guilt for marital breakdown, maintenance, parental custody, parental contacts and division of the marital property.