Family law and the distribution of matrimonial assets | Plathin

Custody of children, residence, meeting rights, maintenance and taking into care

Child law

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Different care and custody forms of children

1. Shared custody

The main principle in the Child Custody and Rights of Access Act is that a child’s interest is best realized when the parents together have the care and custody of their child. Shared custody entails joint action and decision-making in matters related to the child. In shared custody the guardians decide together on questions related to the upbringing, place of residence, nationality, native language, name, religion, health care, day care, schooling, passport and other personal matters of the child.

Restricted shared custody

When the child is in the shared care and custody of his or her parents, the court can decide upon the division of responsibilities between the guardians. This signifies that the decision-making power in tasks specified in a court decision can be given to solely one parent. This kind of appointment of responsibilities issued by the court can concern e.g. decisions on the name, daycare, schooling, health care, religion and/or passport of a child. It is important to note that information on the restricted shared custody is only noted as ”custody is shared” in the population register. The guardian of the child must therefore demonstrate his or her rights as a guardian with a court decision when dealing with officials.

2. Single custody

When only one parent has the care and custody of the child, said parent can alone make decisions concerning the child. The officials (e.g. day care, school, health care and social workers) can only give out information concerning the child to a person who has the custody of said child. Only if given specific permission from the parent with custody, can the information be given to the other parent as well.

The non-guardian’s right to be informed

If one parent has single custody of the child, said parent can alone use decision-making power in matters related to the child. However, with an agreement between the parents or alternatively with a court decision, the other parent can be granted a right be informed on matters related to the child from officials. The non-guardian has to demonstrate this right with a confirmed agreement or a court decision, since the right to receive information is not noted in the population register.

Residence of a child

When the parents share the care and custody of the child, but do not live together, a decision must be made on where the child lives. The starting point should always be the best interest of the child. When considering the residence of the child it is important to take into consideration how the living arrangements and the matters in the day-to-day life of the child can be arranged in the best possible way.

Shared residence

Alternated residence signifies that the child lives half - or almost half - of the time with his or her parents, taking turns. In some cases the child may permanently live in the same place, and the parents take turns.

A child can be officially registered in only one place of residence. The school the child goes to, school transports and the right to a day care place are determined by the child’s place of residence. Furthermore, when granting housing support and many other benefits the child can be taken into account as a member of only one parent’s household. Child allowance is only paid to one parent, generally to the parent with whom the child officially resides.

Right of access of a child and parent

The right of access is intended to secure the child’s right to be in contact and meet up with the parent who is not living with the child. Both parents are responsible for guaranteeing the right of access of the child. All the criteria stated in the Child Custody and Rights of Access Act for the good care of children also apply in the matter of the right of access of the child. The child’s right to meet his or her parent is not dependent on whether the parent has the custody of the child or not. The right of access can be confirmed only between a child and a parent.

Solving a matter related to custody, residence and access of a child

1. Agreement between parents

Parents can make an agreement on the care and custody, residence and right of access of a child. In order for the agreement to be enforceable by execution, is must be made in writing, with a form confirmed by the Ministry of Justice. The child welfare supervisor then confirms the agreement, if it is not deemed contrary to the best interest of the child. By its legal force, a confirmed agreement is equal to a court decision.

2. Court decision on child custody and right of access

If the parents cannot be reconciled in the matter concerning the care and custody, residence and of access of the child, the can case be heard by the district court of either the child’s habitual residence or the child’s permanent residence.

When hearing the case on the care and custody of a child and the residence of a child, the court must take into consideration the best interest of the child and additionally the child’s own wishes. The court can request a report from the social welfare board on the circumstances surrounding the parents and the child. However, social services do not decide the matter. They rather work as an authority assisting the court. That said, the report makes up a significant part in the legal proceedings material of the district court, as the court decides upon the matters related to the care, custody and right of access.

While the case of the child’s care, custody and right of access is pending before the court, the court can give out a temporary appointment on the residence and right of access of the child. The court can stipulate, due to a cogent reason, that only one party should be entrusted with the care and custody of the child until the matter is officially resolved.

The temporary appointment is in force until the court resolves the matter, unless the decision is cancelled or changed before that time.

The parties bear the responsibility for their own legal expenses, unless a specific reason arises, which obligates one party to pay all - or a part of - the other party’s legal expenses.

Changes to an agreement or a court decision

An agreement confirmed by the social welfare board or a court decision related to the care, custody or right of access of a child can be changed with a new agreement or a court decision. This can be done if the circumstances surrounding the situation have changed since the agreement was confirmed or the court decision was given out, or if there is another reason for change.

Enforcement of a decision concerning the care, custody and right of access of a child

If the court decision or a confirmed agreement by the social welfare board on the care, custody and right of access of the child is not followed, its enforcement can be demanded in court. The application for enforcement is filed at the district court of the child’s or the counter party’s place of residence. A decision made less than three months earlier concerning the care and custody of a child can also be enforced by the execution officer of the child’s place of residence. The coercive means of a default fine and fetching are available. However, a decision cannot be enforced if a child who is 12 years old or younger – deemed sufficiently developed – opposes it.

Maintenance of a child

Right to maintenance

According to the Child Maintenance Act, parents are responsible for supporting their underage child. The child has a right to sufficient maintenance. This entails fulfilling the material and the spiritual needs of the child, according to his or her development stage. Furthermore, sufficient maintenance means fulfilling the need for care and education of the child, and answering for the expenses caused by this.

According to the Child Maintenance Act, parents are responsible for the maintenance of their child, taking into consideration the according to their capabilities. When assessing the parents’ ability to pay maintenance, their age, their ability to work, their possibilities to be gainfully employed, the assets to their disposal and their other legal-based maintenance responsibilities are taken into account. When assessing the scope of the parents’ maintenance responsibility also the child’s abilities and possibilities to take care of his or her maintenance are taken into account. Furthermore, also factors leading to there not being any expenses, or that these expenses are minor, are taken into account.

In general, when the child turns 18 years old, the child’s right to receive maintenance from his or her parents ends. The maintenance responsibility can also end sooner e.g. if the child can fully support himself or herself by being gainfully employed. Furthermore, in legal praxis it has been stated that the parents’ maintenance responsibility ends if the child enters into marriage before the age of 18.

If the care and custody of the child is entrusted to another person than the child’s parents, said guardian does not have a maintenance responsibility of the child, as intended by the law.

Maintenance

According to Child Maintenance Act, the child may be paid maintenance if the parent does not in another way take care of the maintenance of the child or the child does not permanently live with his or her parents. In other words, maintenance intends a monetary performance that the parent pays due to his or her maintenance responsibility. This requires participation at regular intervals in the payment of expenses caused by the maintenance of the child.

The amount and payment of maintenance

The amount and way of payment of maintenance is confirmed either with an agreement between the parents or with a court decision. Maintenance can be confirmed for a fixed term or it can be paid in different amounts for different time periods.

Since the factors influencing the amount of maintenance have been described in a rather general manner in the Child Maintenance Act, the Ministry of Justice has issued an instruction for evaluating the maintenance of a child. This instruction is by its nature a recommendation on how maintenance is determined. It is not based on a mandate stipulated by law; hence it does not constrain the officials in their work.

Instruction on evaluating the amount of child maintenance (Ministry of Justice)

Maintenance is paid upfront on a monthly basis. It can also be paid as a one-time performance, if that is the agreement. Maintenance is to be paid by the due date, generally to the bank account of the parent who lives with the child. In case the maintenance installment is not paid by the due date, it can be distrained from the person liable to provide maintenance. Maintenance is a debt with a penalty interest. It has a five-year limitation period.

Solving a matter of maintenance

1. Agreement between the parents

Parents can between themselves agree upon maintenance either orally or in writing.

In case the parents cannot reach an agreement, the matter must be taken up for a decision before a court.

2. Court decision on a matter related to the maintenance of a child

If the parents cannot come to an understanding concerning the maintenance of the child, the matter can be taken up for a decision before the court. The case becomes pending before the court with the service of a written application of summons. The parties in an action for maintenance are the child and the parent required to pay maintenance. The person who has the care and custody of the child represents an underage child.

Generally, the court confirms the maintenance starting from the commencement of action or starting at a later stage, after the commencement of action. The court can however stipulate that maintenance is to be paid starting from a date before the commencement of action, if particularly heavy reasons exist.

The person liable for maintenance must, if he or she loses the case, compensate for all the reasonable legal expenses caused of the other party. Generally speaking, a child must not pay for the legal expenses of the opposite part, even if the child loses the case on confirming or increasing maintenance.

Financial support related to educational expenses

Parents are responsible for the educational expenses of their child also after said child has turned 18 years old, if it is assessed to be reasonable. The tendencies, the length of the education, the amount of expenses caused by said education and the possibilities of the child to himself or herself pay for the expenses are taken into account.

If the financial support related to educational expenses is confirmed before the child turns 18, the parent who the child lives with functions as his or her representative. A child of age can demand financial support related to educational expenses or can direct his or her claim to both parents. The financial support related to educational expenses is paid to the account of a child who has turned 18 years old.

Financial support related to educational expenses can be confirmed for the duration of higher secondary school. Higher secondary school has been considered a part of a citizen’s basic education in established legal practice. Financial support related to educational expenses can also be confirmed for vocational training, but there the threshold is higher. The confirmation of financial support related to educational expenses always necessitates case-specific consideration on whether such a confirmation would be reasonable. The child’s own possibilities to answer for his or her educational expenses, by e.g. student grant, study loan or work, must be taken into account in such a consideration.

Changes to maintenance

Maintenance that has been confirmed at an earlier stage can later be changed with either an agreement between the parents or a court decision.

The amount of confirmed maintenance can be changed, if the circumstances have substantially changed since the maintenance was confirmed and if changing the maintenance is to be considered reasonable both from the perspective of the child and the parent paying maintenance. Maintenance can also be changed if the confirmed maintenance is considered to have been unreasonable from the beginning. Also the circumstances from the year before the case became pending before the court can be taken into account, if there are particular reasons for doing so.

Both maintenance and financial support related to educational expenses are index-linked. This means that they are increased calendar year, according to the cost-of-living index.

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