Judgment No. I. ÚS 2482/13 – the Constitutional Court on joint custody

11 June 2014

The applicant was a father of two minors, aged 11 and 9. In 2008, mother of the two children left home with them and both parents carried out a de facto joint custody. In 2009, the Prague 4 District Court decided to put the children in mother’s care because it found the joint custody to be more appropriate in higher age, since mother was vitally important for the child in preschool and early school age. In 2012, the applicant requested that the children be put in joint custody because the communication between himself and the mother of his children improved.

He changed his job and had more time to spend with the children, who had started attending school, which is why they needed a father for their healthy development. Mother of the children did not agree with the joint custody. The Prague 2 District Court rejected the applicant’s motion, but it held that there was a change of circumstances which led to extension of the father’s contact with his children. Both parties appealed and the Prague Municipal Court decided to narrow the father’s contact with his children because the district court’s decision contradicted the interest of children on stable educational environment. The applicant then filed a constitutional appeal.

In its decision, the Constitutional Court ordered the ordinary courts to repeatedly asses the issue of parental responsibility and it specified the constitutionally consistent interpretation of the institute of joint custody after divorce.  

When deciding on placement of a child to joint custody of the parents, it must be observed that it is a primary interest of the child to be in care of both parents, if each of them provides the child with loving care and each of them contributes to personal development of the child. Putting children in care is a polycentric issue and its solution reflects the view of a society on education of children which is why the Constitutional Court attributes high importance to the law-maker’s perspective. It follows from the evolution of respective legislation that the joint custody should be a rule in cases where both parents are capable of bringing the child up, they are both interested in raising the child and they both care about the child’s emotional, rational and moral upbringing. Other solutions ought to be exceptional, requiring a proof that such a solution is in the best interest of the child. This legal regulation clearly reflects the shift in understanding the role of fathers and mothers in upbringing children, the higher involvement of fathers in care for children in their youngest age, growing number of men taking parental leave and an effort to allow “double-career” marriage. To put it in different words, upbringing a child is no longer exclusively (and not even predominantly) in the hands of mothers, which must be taken into account in case a marriage is divorced and it is necessary to secure the subsequent upbringing of minor children.

On the other hand, joint custody is not only a right of parents but also their duty. If the parent having a child in joint custody repeatedly and unjustifiably fails to pick to child up, he or she may lose the right to joint custody. Such conduct is inconsiderate not only towards the second parent but also towards the very child.