Current Affairs

Výpis aktualit

Another judgment of the Constitutional Court on shared custody: general courts are obliged to convincingly prove and evaluate all obstacles to shared custody they consider

The First Panel of the Constitutional Court (Justice Rapporteur Tomáš Lichovník) upheld the constitutional complaint and annulled the judgments of the Regional Court in Ostrava and the District Court in Bruntál, as they violated the complainant’s right to a fair trial guaranteed by Article 36(1) of the Charter of Fundamental Rights and Freedoms and the right to care for and bring up children guaranteed by Article 32(4) of the Charter of Fundamental Rights and Freedoms.

The complainant is the father of a minor son (born in 2016). After the separation of the parents, the minor was entrusted to the exclusive custody of the mother by a judgment of the District Court in Bruntál in 2019, the complainant’s contact with the minor was adjusted and he was obliged to contribute to the minor’s maintenance. In May 2020, the complainant filed a petition with a district court for shared custody of the minor with a rotation interval of one week. However, the district court did not grant the petition. The court of appeal, i.e. the Regional Court in Ostrava, subsequently upheld the decision of the district court. Both general courts proceeded on the basis that at the time of their decision there had been no change in circumstances that would require a change in the decision on the minor’s custody (Section 909 of the Civil Code). Based on the produced evidence, they put forward reasons why shared custody cannot be adjusted. Specifically, they cited the following obstacles: the child’s young age, the father’s high workload, the parents’ poor communication, the minor’s poor adaptation to change, the father’s lacking respect for the mother’s parental role, the psychologists’ negative opinion on the matter, the difficulty of shared custody, and the not insignificant distance between the father’s and mother’s homes. The complainant then turned to the Constitutional Court. In his constitutional complaint, he argued in particular that, in his opinion, none of the grounds identified by the Constitutional Court in its previous case law for not entrusting the child to shared custody were present.

The Constitutional Court concluded that the constitutional complaint was justified. Therefore, it is evident that the general courts did not decide in the case under review in accordance with the established case law of the Constitutional Court. The court’s decision not to grant the parent requesting shared custody must be justified in detail and convincingly, including relevant arguments as to how the court dealt with the individual criteria for shared custody contained in the case law of the Constitutional Court and why the parent failed the test in the particular case. Facts against shared custody must not only be alleged but also proven in the proceedings.

Courts cannot exclude shared custody only with general reference to the child’s younger age, unless the child is dependent on the mother for breastfeeding. The courts are obliged to justify the specific reasons for which the criterion of young age as an obstacle to shared custody is applied in a given case (for example, in the sense of the possible low intellectual and volitional maturity of the minor).

The stability of the educational environment is an important factor in assessing custody decisions, but it cannot in itself be an argument for excluding shared custody. Otherwise, the status quo as established by the first decision in the case (and thus the factual situation before the first decision) would be effectively preserved and, as a result, a change might never take place. Courts should give special consideration to the possibility of changing the custody model around the age of three. Since the mother is usually the dominant parent providing care until then, refusing to consider shared custody solely with reference to the stability of the minor’s educational environment would, in this situation, essentially unjustifiably rule out the shared custody option forever.

Courts cannot condition shared custody on the requirement of good communication between the parents. The courts are obliged to assess the criterion of mutual communication through the lens of the extent and effectiveness of the exchange of information required in the different models of custody and while taking into account (not only) the existence of the institute of parental responsibility, they should proceed from the thesis that the requirements for the content and quality of parental communication do not differ in theory or practice between the models of exclusive and shared custody.

A parent’s workload may be considered as a factor in custody decisions. However, if the minor is already attending a pre-school or school facility, the workload may constitute an obstacle to shared custody only in exceptional cases that prevent the parent from taking care of the child for longer periods of time. The inability of the parent to perform shared custody must be factually proven in the proceedings; a mere reference to the nature of the employment, even if it is demanding in various respects (e.g. head doctor), is not sufficient.

Courts cannot exclude shared custody by merely referring to the possibility that persons close to the parents might be involved in caring for the minor. It is the duty of the courts to give convincing reasons on the basis of what evidence they have concluded that the parent cannot manage shared custody of the child without the significant involvement of persons close to the parent.

Courts cannot exclude shared custody by merely referring to the overall demands this custody model places on the minor or the parents. It is their duty to convincingly justify what exactly the hardship is supposed to be in a particular case. For example, the argument about the risks of the child’s frequent moving cannot stand as an argument against shared custody, because in the vast majority of cases the frequency of changing the educational environment of the minor in the case of shared custody is lower than in the case of exclusive custody of one parent.

Although the models of exclusive custody with “extended contact” and shared (and in particular unequal) custody overlap in a number of respects, the choice between them is not purely a matter for the discretion of the general courts. Since shared custody has its specific advantages (among other things, it ensures a truly equal position of both parents), the general courts should not, when assessing a change of custody and if all the criteria are met, prefer to retain exclusive custody with a certain extension of the other parent’s contact, but, in accordance with case law, choose the model of shared (albeit unequal) custody. This, of course, does not preclude the general court from choosing the option of exclusive custody of one parent combined with (genuinely) extensive contact for the other parent, even if the assumptions of equal custody and the fulfilment of the aforementioned criteria are taken into account. The general court is always obliged to give properly justify its decision making and to demonstrate under what conditions a switch to shared custody would be feasible in the future.

The case is returned to the District Court in Bruntál, which will be bound in its further decision making by the legal opinion of the Constitutional Court expressed in this judgment.