Parental disputes refer to cases where a marriage or relationship has broken down and there is disagreement between parents concerning the children. Cases involving children are governed by the Children Act.
1. CENTRAL CONCEPTS
The most important concepts in parental disputes are:
- Parental responsibility
- Permanent abode
- Right of contact and staying access
There follows a brief description of these concepts:
1.1. Parental responsibility
Parental responsibility includes both a right and a duty to participate personally and significantly in the life of a child, as well as to be informed of important facts relating to the child’s life and welfare. Parental responsibility entitles one to prohibit the child from being removed from the country; a parent holding such responsibility has the right to approve the issue of a passport to the child, the name of the child, whether the child shall be received into a religious community, and whether medical assistance shall be given to the child.
As a principal rule, it must be said that it is considered to be in the child’s best interests that the parents share joint parental responsibility. In most cases, the parents do share this responsibility, and it takes a lot for one to lose something so already well-established. In those cases where a parent does not wield his/her responsibility in accordance with a child’s best interests, or where there is a vexatious conflict between the parents, it is deemed best for the child concerned that one of the parents exercises sole parental responsibility.
1.2. Permanent abode
There are several ways of describing where a child lives on a permanent basis. The rules currently prescribe that we employ the term “permanent abode” and not “daily care”, with which many are acquainted. However, both terms mean the same. The child shall live with whichever of the parents who is domiciled at the permanent abode, and it is this parent who will make most of the day-to-day decisions concerning the life of the child. This parent is said to have day-to-day care of the child.
The parent living at the permanent abode may also relocate with the child within the country, as long as the other parent is notified three months prior to the move.
1.3. Right of access
The main rule is that the parent who is not living at the permanent abode shall have right of access to the child. The Act defines ordinary right of access as “every other weekend, as well as an over- night stay once a week and shared holidays”. When the weekend starts and finishes is, however, not defined in greater detail, and there are many variations of how “ordinary right of access” is interpreted in practice; whether it is from Thursday to Monday, or from Friday to Sunday. Some choose to delay the “mid-week access” and thus prolong weekend access by one day – various options are possible here. If there is considerable geographical distance between the parents’ residences, one may also agree on more infrequent, but longer periods of access.
It is only exceptionally that a right of access is overruled or that access is conducted under supervision. Access under supervision means that a neutral third party is appointed to supervise the period of access.
2. DETERMINING FACTORS IN CHILD CUSTODY CASES
The determining factors in a child custody case involve the circumstances that are of importance in deciding where the child shall live on a permanent basis, and how much contact it should have with the other parent.
The summary of determining factors presented below is not exhaustive, but it describes many of the typical circumstances that often occur and which play a significant role during a child custody case.
2.1. Status quo
One is reticent to alter an already existing and smoothly functioning custody arrangement. This factor tends to be called the status quo principle. The underlying idea here is that the child needs continuity, having grown accustomed to existing routines and its close environment.
As far as the close environment is concerned, though, this is mainly a determining factor in cases involving children who are more than three to five years old. This is because it is not considered to play such an important role in the lives of the youngest children, whose most important environment consists of the parents and close family. For children older than five or six, it is common for friends, school, and activities to have become an increasingly more important factor in their lives. If both parents live close to each other and one of them wishes to relocate and take the child with him/her, then this deciding factor will be important, though not always decisive.
2.2 Geographical distance between the parents’ residences
The distance between the homes of the parents has, naturally enough, relevance for the frequency of access between the child and the visiting or contact parent. If the journey time between the two locations is long, frequent access will inevitably become interruptive and tiring for the child. In such cases, it may be appropriate for contact to be concentrated in longer but more infrequent sessions. How long these contact periods can and should be, nevertheless depends on all the other determining factors that are taken into consideration when deciding what is in the child’s best interests.
2.3. The child’s opinion
According to the Children Act, children who are more than seven years old do have the right to be heard before a decision is taken regarding where they shall live, or what kind of custody arrangement they wish to have with the other parent. The opinions of younger children may also be heard, as long as they are able to “form their own viewpoint”, whereas considerable weight is attached to the opinions of children who are 12 or older.
In the course of a child custody case, a child is usually interviewed by a psychologist in the homes of each of the parents. In recent times, however, it has also become more customary for the child to express his/her opinion to the judge in the case.
2.4. Good overall parental contact
When a relationship between two people breaks down, it is relatively natural for disagreements and arguments to erupt. Most children who experience arguments between a couple whose relationship is dissolving, tend to understand and will not be upset as long as the conflicts and arguments cease after the breakdown.
We now know that children, to a greater or lesser extent, are harmed if their parents continue to argue and denigrate each other after the break-up. They may argue loudly and “clearly”, or they may demonstrate to the child their dislike of the other parent in other more tacit ways. They might do this by being condescending, by their body language, or by making fun of a partner, etc. This is not beneficial for the child, and in child custody cases in recent years more weight has been attached to allowing the child to live permanently with the parent who best shields it from the conflict with his/her partner, who provides the basis for good cooperation, and who complies with the rules governing access.
The established relationship, and attachment between a child and its parents, are of great importance for the custody arrangements to be decided for the future. If the child had a good, close relationship with the custodial parents when they were living together, this factor will favour a regime of extensive contact that will ensure the relationship is nurtured in the best possible way. How much access is required in order to do this must be carefully appraised in each case, bearing in mind that there might well be other limiting factors that impact on the scope of custody. These could take the form of a conflict between the parents, or a considerable distance between their homes.
If the parents have not lived together after the birth of the child, and the parent with access has had little contact with it, it is usual initially to arrange for more restricted access, which can subsequently be increased to the level deemed to be in the child’s best interests.
Suitability is linked to the personal characteristics of the parents. A very small number of parents are simply not compatible with a permanent abode and in some cases, they are unsuited to have contact with the child. Nevertheless, it is a considered to be a fundamental principle that it is best for the child to know both its parents, and in cases of unsuitability, access under supervision can be arranged so that contact between parent and child can nonetheless take place.
Of course, it would take a lot for an unsuitable parent to be awarded custody of his/her children. A parent’s unsuitability might be due to causes such as drug addiction, a history of violence, serious mental health issues, or other criminal offences etc. Prolonged exposure of the child to the negative circumstances of this parent’s situation parent may also, in certain instances, indicate that access or even access under supervision should be severely restricted.
It is considered valuable in itself that a child enjoys good, close contact with his/her siblings. More often than not, siblings will be part of the same custody arrangements with their parents, though exceptions might be made if one is of the opinion that the children have different needs and separate arrangements would be in their best interests. It is also important for children to have contact with their step-siblings, and if one of the parents should have more children, then this may be an important factor in determining which custody arrangements are best for the child.
3. MEDIATION AT THE FAMILY WELFARE CENTRE
If partners whose relationship is breaking up have children under the age of 16, they must report to the Family Welfare Centre, where it is possible to sign up for mediation sessions. A partner can also request an individual mediation session, if he/she finds that joint sessions too demanding.
A mediator is not authorised to coerce a partner to do anything they do not wish to do. The agreements signed at the Family Welfare Centre are often rather imprecise, and it may be preferable for the partner himself/herself, or together with a lawyer, to draft a somewhat more detailed agreement that will leave less scope for future disagreement.
4. CHILD CUSTODY CASES IN COURT
If one party wishes to take a case to court, he/she must bring a civil action. To bring a child custody case to court, one is required to produce a valid mediation certificate. Such a certificate is obtainable after one has taken part in mediation at the Family Welfare Centre, and it is valid for six months. If one lacks a valid mediation certificate, one of the parents must contact the Family Welfare Centre in order to book a new mediation session, where a new certificate will be issued, if the mediation does not succeed in getting the parties to agree.
The case will be heard in the court where the child/children are living permanently. Child custody cases are given priority and the courts, insofar as is possible, shall ensure they are heard without due delay.
5. PRELIMINARY HEARINGS
Most parental dispute cases commence with preliminary hearings prior to a possible main hearing. Preliminary hearings take place in court, though usually in a smaller courtroom or conference room, in the presence of the parties, legal representatives, judge and expert witnesses. Witnesses appear seldom in preliminary hearings. The purpose of this initial process is to attempt to get the parties to reach agreement, as this is considered preferable for their relationship and their future cooperation.
Several preliminary meetings can be arranged, but it is unusual for the parties to meet more than three times before the judge will expect to see a final agreement. If this is not the case, a main hearing will be arranged where the judge will decide on a permanent arrangement.
6. MAIN HEARING IN CHILD CUSTODY CASES
If a case is not resolved in the course of preliminary hearings it can be withdrawn or brought to a main hearing. A main hearing is a “normal” court case, and as a rule one to two days are set aside to hear a child custody case in court.
At the end of the main hearing the judge deliberates on the issues involved and hands down a decision. It normally takes a couple of weeks before the judge’s pronouncement after a main hearing. A judgment in a child custody case may be appealed in a similar way as other judgments. A decision reached in a district court may be appealed to the court of appeal. The time limit for doing so is four weeks from when one is informed of the decision.
7. EXPERT WITNESSES
In most cases, an expert witness is appointed prior to the main hearing, who carries out his/her work in accordance with the terms of reference issued by the court. As a rule, the same psychologist is employed who has already been involved in the case during the preliminary hearings.
The expert witness shall, in most cases and in good time before the main hearing, prepare a written report, including an assessment and recommendations as to how the case might be resolved. In doing so, the experts witness usually gathers information about comparable cases, enters into fresh consultations with the parents and, as the case may be, with the child.
The psychologist is an expert witness during the main hearing, and he/she gives evidence after the other witnesses, but before the pleadings.