Declaring joint parental authority following a divorce or separation

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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.

Joint parental authority poses no problems when the parents are married. Indeed, during the marriage, the mother and father exercise their authority jointly.

In addition, if the mother and father are divorced or legally separated, parental authority is, in principle, exercised by the parent to whom the court granted custody of the child at the time of the divorce or legal separation, except where the other parent has visitation rights and right of oversight.

The question then becomes whether unmarried, or divorced, parents can claim joint parental authority (custody of the child).

It should be noted that depending on the type of divorce proceedings and the time when the application is made, the procedure and conditions for the assignment of joint parental authority may vary.

Who is concerned

  • Mother and father not married, with a child together;
  • Mother and father in the process of divorcing;
  • Mother and father divorcing by mutual consent;
  • Mother and father after the divorce.

How to proceed

Mother and father not married

In the case of a child whose parents are not married, parental authority is exercised by the parent who has voluntarily recognised the child. If both parents have recognised the child, the law provides that parental authority is held by the mother. However, this provision has been held to be unconstitutional by the Constitutional Court, as it goes against the principle of all citizens being equal before the law. However, this does not necessarily mean that the two parents must exercise joint parental authority, as, depending on what is in the child's best interests, the judge may decide to award parental authority to only one of the two parents.

In other word, if both parents have recognised their child, the father may object to parental authority being held only by the mother, unless the judge has decided that, in the interests of the child, parental authority should be exercised only by the mother.

In any case, parental authority may be held jointly by 2 unmarried parents if they make a joint declaration to that effect before the judge in guardianship matters.

This declaration is made by petition, i.e., on paper, to the judge in guardianship matters. The parties need not necessarily be represented in court by a lawyer. The procedure is shorter, and the costs are low.

Mother and father in the process of divorcing

At present, the courts are reticent to award joint custody to parents going through a divorce, which is in close keeping with judicial texts which can be interpreted as hampering the establishment of joint custody.

Consequently, joint custody cannot, in principle, be awarded when divorce proceedings are under way, either provisionally or definitively.

Mother and father divorcing by mutual consent

Although it is not stipulated by any legal text, it seems that the Chair of the district court—which rules on petitions for divorce by mutual consent—is not averse to the idea of joint custody when express provisions for such have been made by the parents in their agreement for divorce by mutual consent.

From a judicial point of view, this is more a question of tolerance than one of strict application of the law.

In any case, joint custody (joint parental authority) is possible in the context of a divorce by mutual consent.

Mother and father after the divorce

At any time after the divorce, the custody court may assess, alter or supplement the custody regime in the child's best interest.

The case law of the custody court seems to lean almost invariably towards refusing joint custody (joint parental authority), even when the divorced parents have expressed their mutual agreement on that point, despite the recommendations of the Public Prosecutor's Office which, for its part, often is not opposed to the idea of joint parental authority if the divorced parents so agree.

Here again, the Constitutional Court recently decided that the articles in the Civil Code which assign parental authority solely to the parent who was awarded custody of the child were unconstitutional, and more specifically ran counter to the principle of equality before the law, as the law allows for joint parental authority for unmarried parents who have legally recognised their child. Consequently, a parent who did not obtain custody of their child could legitimately ask for both parents to jointly exercise parental authority, if that would be in the child's best interest.

The legislative body intends to address this issue by including, in amongst other new aspects in a divorce reform, the idea of joint parental authority (joint custody) when it is in the child's best interest and when the former spouses have reached an agreement on the matter.

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