Parental authority is the set of rights and obligations conferred on the mother and father over their minor child's person and possessions in order to safeguard the child's health, safety and moral well-being. It is the corollary to the right and duty of custody, supervision and education.
Whilst custody, therefore, is one of the component parts of parental authority and is exercised, in principle, by the 2 married parents, this is no longer true in the case of a divorce or legal separation.
In that case, it must be determined which of the 2 divorced/separated parents will have custody and which will only have visitation rights (and accommodation – i.e. having the child/children stay overnight).
Who is concernedCouples in the process of divorce or legal separation and who have one or more children together.
How to proceed
Custody rights are always sought during divorce or legal separation proceedings duly brought before the competent court.
Thus, the application for custody rights is ancillary to the divorce or legal separation proceedings, and is filed by a lawyer of the Court before the civil court. Even during the divorce or separation proceedings, one of the spouses may request provisional measures on the right of custody and visitation before the judge in chambers.
The main criterion is the children’s best interest, which means that, in considering the measures to be taken, the judge should only be guided by the greater good of the children.
The judge must consider only what is best for the children in terms of their lifestyle, development, education, future, happiness and balance.
In principle, the children should remain in the home environment to which they are accustomed, provided it is stable, healthy and normal. In most cases, judges tend to award custody of children to the mother, rather than the father, especially if the children are of a young age.
In regard to the setting of custody rights, the judge may ask the child's/children's opinion, but that opinion should not unduly sway the decision. Before making the decision, the judge often orders an investigation into the family's circumstances (enquête sociale), which may be with or without the parties' consent. Regardless of which parent is awarded custody of the children, both parents retain the right to oversee their children's maintenance and upbringing, and are obliged to contribute to them to an extent commensurate with their capabilities.
Visitation and accommodation rights
Visitation and accommodation rights are granted to whichever of the parents has not been awarded custody.
Visitation rights entail meeting the child and spending either a day or a weekend with them. Accommodation rights—which are closely linked to visitation rights—entitle parents to have the child stay at their home for a longer period of time (e.g., for a part of the school holidays).
Very frequently, judges set the workings of the visitation and accommodation rights as follows: every second weekend (e.g. from Friday evening, 18:00, to Sunday evening 18:00), and for half the length of the school holidays. However, other options are available, particularly if circumstances warrant it (e.g., if one of the parents is a shift worker).
In any case, visitation and accommodation rights are natural rights which cannot be denied to parents who were not awarded custody of their child. Nonetheless, in exceptionally serious circumstances, and if it is in the child's/children's best interests, the visitation and accommodation rights may be suspended, or even revoked, until further notice. Such might be the case if the parent with visitation rights is clearly incapable of taking care of the child (for instance, if the parent is an alcoholic).
It should be noted that grandparents may claim visitation rights as well. Indeed, without very serious reasons, the parents may not stand in the way of the child's personal relationship with their grandparents. However, the visitation rights awarded to grandparents are not in the same proportions as those awarded to parents.
When the decision on the awarding of custody has to be enacted abroad, that decision must be legally recognised in the foreign country in question. In principle, such recognition is obtained by exequatur, with the assistance of a lawyer.
Depending on the best interests of the child, the custody and visitation and accommodation arrangements may be altered at any time. One of the parents needs only apply to the judge in guardianship matters (or the divorce judge, if the divorce proceedings are still ongoing). However, the reasons cited must be sufficiently serious to justify such a change, especially if the petition is to remove custody from one of the parents and assign it to the other. These reasons could include severe psychological problems or alcoholism on the part of the parent with custody, which prevent them from taking care of the child normally. Similarly, if the parent with custody decides to move a long way away, which would suddenly take the children out of their natural environment (their school, their friends, etc.), they might lose the right of custody to the other parent.
Who to contact
Luxembourg and Diekirch Bar