Shared custody should be the rule, not the exception

Currently, the position of the Constitutional Court in the case of post-divorce care for minors is still exclusively in favor of shared custody. This view is based primarily on the fact that the sole custody of children is not in the best interest of the child. The child should have care from both parents to achieve his or her all-round development. Although exceptions to this rule exist, they must be duly justified by sufficiant change in circumstances. In this spirit, the Constitutional Court systematically decides (among other things, especially in judgment I. ÚS 2482/2013), therefore, shared custody is also preferred by general courts.

Sincere interest in the child and the child’s wishes

The Constitutional Court took a position on shared custody primarily on the sincere interest in the upbringing of a child. He stated that if the relevant criteria are met equally for all persons who have a sincere interest in entrusting the child to custody, it is desirable to entrust the child to a joint or shared custody. If this procedure is not possible, there should be measures taken to allow such a procedure in the future. Only this way the conditions for the all-round development of the child are ensured, and only in this way can the interference with the child’s family life be minimized even after his or her entrustment to the care of the striving persons.

Criteria that general courts must take into account in the best interests of the child in child custody proceedings include, in particular: the existence of a blood bond between the child and of the person seeking custody; the degree to which the child’s identity and family ties are preserved if he or she is entrusted to the care of a specfic person; the ability of the person seeking custody of the child to provide for his or her development and physical, educational, emotional, material and other needs; and the wishes of the child.

Assuming that the child is sufficiently intellectually and emotionally mature, his or her wish must be considered as an essential guide in the search for his or her best interests. At the same time, however, it is not possible for the general courts to take the position of a minor automatically and to base their decision solely on his or her wishes and not on a careful and comprehensive assessment of his or her interests.

Conditions for entrustment to shared custody

When it comes to deciding on the custody of a child, the Constitutional Court is of the opinion that it is in the best interests of the child that he or she should be primarily in the care of both parents. It derives from previous case law but also from many findings concerning child development, which consider the care of both parents as one of the most important aspects in the psychosocial development of the child. Shared custody can therefore be a tool to achieve undisturbed development even after the marriage has broken down. However, the prerequisite is the willingness and ability of both parents to participate in the child’s upbringing, both emotionally, intellectually and morally. If this is the case, the Constitutional Court is of the opinion that “entrusting a child to shared custody should be the rule, while another solution should be the exception.” At the same time, he adds that such an exception must be proven in the best interests of the child. In the judgment, the Constitutional Court also repeatedly stated that the general courts cannot exclude shared custody because one of the parents does not agree with it and prefers to have the child in sole custody.

Change of shared custody by sufficient change of circumstances

The Constitutional Court also defines the cases when it is possible to re-evaluate the prescribed shared custody. As already mentioned, this must be done only in the best interests of the child. It is possible that the courts have in the past ruled on the entrustment or non-entrustment of a child to shared custody or approved an agreement on child custody between both parents. Which simply means that shared custody was either established by a court or approved by agreement between the parents. In order to achieve a change in this form of childcare, it is necessary that there exists a sufficient change in circumstances and at the same time it is necessary to supervise the maximum compliance of the best interests of the child. It is usually assessed whether it is necessary to reconsider the current custody conditions to which a child may be already accustomed because of the young age. The general courts must give sufficient consideration to this assessment of the change in circumstances.

The change of circumstances is regulated in § 909 of Act no. 89/2012 Coll., Civil Code and also in § 475 of Act. No. 292/2013 Coll., Act on special court proceedings. The change of circumstances justifying the new decision in the case must be of a more serious nature, ie. substantial change. It should be the result of a change in those facts which formed the factual basis of the court’s decision on the care and maintenance of a minor child, or a court decision approving the parents’ agreement on the care and maintenance of a minor child. The court must reconsider whether, from the point of view of the child’s interest, a change in the decision on the exercise of parental responsibility outweighs the requirement of permanence of the educational environment.

The stable educational environment, which is crucial for the child’s development, is often emphasized. However, the permanence of the child’s educational environment is perceived as an important value even by older case law, eg. in the decision of the Supreme Court of the Czechoslovak Socialist Republic No. R 97/1967, which is still cited in the literature or current court decisions. According to that decision, it justifies a change in a decision on the custody of a minor only „if the change is substantial or only if other circumstances prevail over the requirement of stability of the minor’s educational environment“. The stability of the educational environment was also preferred by the Constitutional Court in judgement I. ÚS 3216/13 and decree III. ÚS 215/17.

It should therefore be borne in mind that general courts usually decide in accordance with the case law of the Constitutional Court, which is currently inclined to shared custody. The change of this custody model is supported by the courts only if there have been significant changes of circumstances for the parents or the minor, which previously led the court to decide to entrust him or her to shared custody. Therefore, whether you are a proponent of shared custody or vice versa, it is advisable to have good legal representation in the event of a court dispute over parental responsibility. In such a case, do not hesitate to contact our law firm, where we will help you with this issue.