After the separation of parents, it is necessary to adjust the issues of care for their common minor children. Partners remain the parents of their children even after separation, so they should first of all agree on how they will continue to provide care for them.

HOW TO ADJUST CHILD CARE IN SLOVAKIA

Partners who do not live together, or who have separated, have two basic options for solving child care issues, or the exercise of parental rights and responsibilities. However, there will be three basic procedural ways: A) Parental agreement and B) COURT DECISION and C) Combination of both

A) PARENTAL AGREEMENT: Partners can just agree on particular aspects of childcare. As long as the partners communicate sensibly and cooperate in matters related to children, there is no need to write anything down, no written document – a parental agreement – will be necessary. Partners may also write down the terms of the parental agreement, but it is no need to have the agreement approved by the court.

B) COURT PROCEEDINGS: If the partners cannot come to an agreement and conflicts and arguments arise between them, they prevent each other from contacting the children, or they approach child care issues irresponsibly, and thus the children’s interests are at risk, then it is appropriate to resolve the child care officially. In court proceedings, the court will authoritatively determine the exercise of parental rights and obligations.

C) Combination is the best for partners and their children. It means, that the parents agree on childcare themselves and the court will officially approve the parental agreement. We recommend submitting the parental agreement to the court for approval, because in this case the agreement will be enforceable and enforceable.

CHILD CUSTODY IN DIVORCE IN SLOVAKIA

Child custody must also be officially resolved in the event of a divorce.
At divorce proceedings resolution on childcare will be mandatory, because in the divorce judgment the court must also regulate the custody of the children. Again, there are two options, either the parents agree and the court approves the parental agreement, or they do not agree and the evidence will be conducted in court proceedings and the court will make an authoritative decision according to the results of the evidence, in accordance with the child’s interest.

DIFFERENCE BETWEEN AGREEMENT AND PROCEEDING

Parental agreement is always preferred by the Act No. 36/2005 Coll. – the Family Act. Only if the parents cannot agree on particular issues (e.g. the amount of child support), then the court will make an authoritative decision.

The difference between a parental agreement and a court order is mainly that the terms of the agreement are determined by the parents themselves. Parents use a help of professional, and they do not even have to file a motion with the court if they comply with this agreement.

Parental agreement may be approved by the court or it does not need to. A disadvantage of such an agreement (not approved) is that in the event of a breach of the agreement, they do not have the means to enforce compliance with it – e.g. a petition for enforcement cannot be filed if the parent does not pay maintenance according to the parental agreement.

Only the agreement approved by the court is enforceable. A parental agreement can be approved by the court even at a later date to make it enforceable. If one parent does not comply with the agreement, the other parent can ask the court to review and approve the parental agreement. If the court additionally finds that the parents’ agreement was validly concluded and that it is in the interest of the children, it will approve the agreement.

Judicial determination on childcare on court proceedings is used by parents who have not reached an agreement. One of them files a petition in court and according to the results of the evidence in court, rights and obligations will be authoritatively determined by the judge, which will also be enforceable (the judgment is an enforceable title).

However, even during court proceedings, parents may change their minds and conclude a parental agreement and thus avoid additional costs, long duration of the proceedings, payment of the fee for expert evidence and all the stress associated with it.

If the parents have entered into a parenting agreement, the court proceedings (including the divorce proceedings) can be accelerated, because the court will no longer have to examine the circumstances and make a decision, but will mostly just approve the agreement.

BASIC ASPECTS OF PARENTAL RIGHTS AND OBLIGATIONS

In the parental agreement or in the court decision regarding the childcare, and/or in the court decision on childcare, and/or in the judgment on divorce, there will determination on 4 basic aspects of the exercise of the so-called parental rights and obligations, which are mainly the following:

1. CARE OF CHILDREN – continuous and consistent care for education, health, nutrition and all-round development of a minor child,

2. REPRESENTATION of a minor child and ADMINISTRATION OF PROPERTY of a minor child,

3. MAINTENANCE for a minor child – it is usually paid by the parent who is not awarded the custody of the child, or who has a higher standard of living (in the case of alternating care). In some cases, alimony does not have to be determined by an exact amount. Anyway, the alimony obligation follows directly from the law.

4. CONTACT of a parent with a minor child – usually the right of contact with the child is specifically adjudicated to the parent who is not awarded the custody of the child. Determining contact is not mandatory, as it follows directly from the law. It is also possible to ask not to adjudicate the contact.

OTHER: There are also other specific aspects that can be included in the parental agreement or court decision depending on the circumstances, e.g. –
– regulation of children meeting their parents during the holidays,
– regulation of long-distance (online or phone) communication with children
– regulation on which parent will receive child allowance or tax bonus, etc.

EQUAL STATUS OF BOTH PARENTS

Both parents have the same parental rights and responsibilities and their status is equal. Today, the courts also entrust minor children to the care of fathers, and assign the obligation to pay child support to mothers. Times are changing, even fathers go on maternity or parental leave. The courts carry out the evidence, assess the circumstances and decide in such a way that it is mainly in the best interest of the child. The interest of the child always depends on the special circumstances of the given case. Special circumstances are demonstrated to the court in the court proceedings in order to make a correct decision (in case that the parents do not come to an agreement on their own and do not present the parental agreement to the court for approval).

FORMS OF CUSTODY – CARE FOR MINOR CHILDREN

Care for minor children is only one of the 4 components or aspects of parental rights and obligations. However, it can be assessed that it is a kind of foundation stone, because other adjustments are then made based on it. Other aspects of parental rights and obligations depend on the form of care, especially who will pay child support (since the one does not have a child in his or her care) and whether and how he or she will have contact with the child.

According to the Slovak Family Act, parental rights and obligations (child custody) towards a minor child can be adjusted in three ways:

A. EXCLUSIVE personal care of one parent:

• the court entrusts the child to the exclusive custody of one of the parents. The scope of contacts with the child will be adjusted for the second parent, and he will pay child support to the parent awarded the custody.

• this form of care can be authoritatively ordered by the court even against the will of one parent, if this form is in the best interest of child.

B. ALTERNATE personal care:

• new in Slovakia – since year 2010

• the court entrusts the child to the alternate personal care of both parents – either on the basis of an agreement, or it can decide authoritatively on its own. In both cases, however, it must be proven that this solution is in the child’s interest.

• the parents will have a precisely determined period of time with the child, most often every odd-numbered week with the mother and every even-numbered week with the father.

• certain prerequisites are required, without which this solution would not be possible, in particular that both parents are interested in taking care of the child and be capable of raising it, the parents residences are close, the child’s school facilities and health care is close, parents have approximately the same views and approach to raising the child, and others

C. JOINT personal care:

• new in Slovakia – since yeas 2023

• this form of custody complements the two already existing forms of care and is equivalent to them

• this form cannot be adjudicated by the court itself. The court entrusts the child to the joint custody of both parents only on the basis of their common agreement. Moreover, it must be proven that this solution is in the child’s interest. Both parents must be interested in taking care of the child and be capable of raising it.

• parents will not have specified exact days and times of taking turns with child care

• no other aspects such as representation of the child, management of his property or alimony need to be adjusted, both parents will have exactly equal status. The sentence of the judgment will be short. Both parents will have the same rights and obligations and it is assumed that they will be able to make decisions together, adapt, communicate and cooperate in every situation.

• it is required to fulfill the same prerequisites as with alternating care, without which this solution would not be possible – residence, school, educational conditions…

• this form of care has the strictest criteria, because the parents’ agreement and the conditions of the parents’ cooperation are a necessity.

The fact of entrusting a child to one of the forms of personal care for a child also affects various aspects, including the right to the payment of Slovakian family benefits or the application of a tax bonus in Slovakia. In the case of entrusting the child to one of the parents, he or she will also have all claims. In the case of alternating or joint care, various solutions come into consideration – more on these aspects in the next article. In the future article we will clarify differences between joint and alternate custody in details.