AKMV Agreement between parents on child custody when they do not live together
QUESTION
My ex-boyfriend (we were not married) and I are expecting a child. We have mutually agreed that after the birth, our child will live exclusively in his care in Norway (my ex-boyfriend is also Slovak but lives in Norway; I live in Slovakia). Is it necessary to officially confirm this arrangement somewhere or take it to court, even though we both agree on this?
ANSWER:
Even though you and your boyfriend have agreed on the arrangement of rights and obligations concerning your child, it is necessary for the enforceability of the agreement to have it approved by the court. This follows from § 36(1) of Act No. 36/2005 Coll., the Family Act, which states: “Parents of a minor child who do not live together may at any time agree on the adjustment of the exercise of their parental rights and duties. If they do not agree, the court may, even without a petition, regulate the exercise of their parental rights and duties, especially by deciding which parent will be entrusted with the personal care of the minor child.” As indicated in the Family Act, the condition is that the parents of the minor child do not live together. However, this condition is not considered fulfilled if the parents merely do not live in the same household. Living together means forming a mutual life community. The inability to obtain a shared apartment, performing certain jobs, long-term institutional treatment, or other objective reasons preventing cohabitation do not automatically mean that the parents do not live together. The court must investigate the existence of harmony in their relationship, the prospects of their life community continuing, and whether they jointly care for the household and children. (Horváth, E.: Family Act – Commentary. Iura Edition. 2014)
Please note that the agreement proposal must be filed with the court by either parent. The proposal is submitted to the court according to the child’s place of residence.
The proposal must contain the following particulars:
Identification of the petitioner and respondent (i.e., the parents)
Description of the factual situation
Clear statement of what the petitioner is requesting, for what reasons, and to what extent
Identification of the parent to whom the child is to be entrusted in exclusive care
Amount of child support
Child’s birth certificate
Date and signature
The court is not obliged to approve your proposal in full because it primarily decides based on the best interests of the child. This means your proposal is not binding on the court and may be modified by the court’s authoritative decision. The best interests of the child are especially considered in matters of child support, personal care, and contact with the other parent.
The court proceeds with this proposal similarly as in decisions on parental rights and duties in divorce proceedings and follows the same principles as if it were deciding the matter itself. The proceedings are exempt from court fees. The court does not grant compensation for costs to the parties.
JUDr. Veronika Michalíková, MBA QUESTION
My ex-boyfriend and I have a 2-year-old son who has my last name and my citizenship, as my ex-boyfriend does not have Slovak citizenship. Our son was born in Slovakia, and one month after his birth, my ex-boyfriend left for the Netherlands for work. I don’t know how to proceed because he does not contribute regularly to our son’s needs. If he sends money, it’s only when he feels like it. Sometimes he even says he is not obligated to send me money and claims he doesn’t know how I use it — even though I send him receipts for every purchase.
He has been emotionally manipulating me since the day he found out I was pregnant and I refused to have an abortion. He acts aggressively and has laid hands on me more than once, not to mention daily insults and verbal abuse toward me and my family. Because I know what he’s like — and he’s threatened things like “the child is mine, I’ll take him” — I’m afraid to take any steps. That’s why I’m asking for advice on how to proceed. I don’t want my minor son to spend even a single day in his father’s care without supervision. I don’t want it to seem like I’m denying my child a father, because that’s not true — we do video calls with him, I send him pictures, etc.
ANSWER:
You and your ex-partner can come to an agreement regarding the arrangement of parental rights and responsibilities toward your child. However, such an agreement must be approved by the court. This obligation follows from § 36(1) of Act No. 36/2005 Coll., the Family Act, which states: “Parents of a minor child who do not live together may at any time agree on the adjustment of the exercise of their parental rights and responsibilities. If they do not agree, the court may, even without a petition, regulate the exercise of their parental rights and responsibilities, particularly by deciding which parent will be entrusted with the personal care of the minor child.”
As mentioned in the Family Act, the condition is that the parents do not live together. However, this condition is not fulfilled simply because the parents no longer share a household. Living together means forming a mutual life partnership. Therefore, reasons such as the inability to obtain shared housing, certain types of employment, long-term medical treatment, or other objective barriers to cohabitation do not automatically mean the parents are considered to be living separately. The court must examine the nature of their relationship, the prospects for continuing their life together, and whether they jointly care for the household and the child.
(Source: Horváth, E.: Family Act – Commentary, Iura Edition, 2014)
If you and your ex-partner reach an agreement on your parental rights and responsibilities, you must submit a proposal to the court. This proposal must be submitted to the court with jurisdiction over the child’s place of permanent residence.
The court is not obligated to approve the proposal in full, since it always acts in the best interest of the child. This means the court is not bound by your agreement and may modify the arrangement by official ruling. The best interest of the child is especially considered in matters of: child support (alimony), personal custody, and contact with the other parent.
If you cannot reach an agreement with your ex-partner, you must file a petition for determination of child support. If your child is a minor, the court may award retroactive child support for up to 3 years, provided there are special circumstances justifying it. The law does not define these special circumstances precisely — it is up to the court’s discretion.
The court will examine the financial situation, abilities, and opportunities of both parents.
You must present proof of expenses that you’ve already spent and continue to spend on your child — therefore, it is recommended that you keep all receipts and documentation.
JUDr. Veronika Michalíková, MBA QUESTION
If a 15-year-old son, who has been placed in shared (alternating) custody of both parents, chooses to attend a secondary school outside the city of permanent residence, where he needs to live in a dormitory, does he need the consent of both parents? I, as the mother, approve of it, but the father completely refuses. How can we proceed in this case? Can the son still attend the school if he decides so himself, or does he need both parents’ consent? And what happens if the father refuses to pay his share of the costs for food and accommodation? Thank you for your answer.
ANSWER:
Good day,
According to § 35 of Act No. 36/2005 Coll., the Family Act (hereinafter referred to as the “Family Act”), “If the parents cannot agree on essential matters related to the exercise of parental rights and duties—particularly matters such as the relocation of the child abroad, the management of the child’s property, citizenship, consent to medical care, and preparation for a future career—the court shall decide upon the petition of one of the parents.”
As stated in the reasoning of a ruling by the District Court of Vranov nad Topľou, case no. 8P/102/2023: “If the parents cannot agree on essential matters related to the exercise of parental rights and duties, such as the choice of school, either of them has the right to file a petition with the court to replace the consent of the other parent in accordance with § 35 of the Family Act.”
In your case, we recommend filing a petition with the court to replace the father’s consent. Since your son is still a minor (under 18), both legal guardians (parents) must consent to him studying in another city and living in a dormitory.
It is also important to keep in mind that under Article 5 of the Family Act: “The best interests of the minor child shall be the primary consideration in all decisions concerning the child.”
This principle is further emphasized by the Bratislava II Municipal Court in case no. 22P/27/2023: “Being a parent is a commitment — from the moment of becoming a parent, every life decision must be made with primary regard for the child’s interests. A child is not an object to be handled solely based on a parent’s personal ideas of what is good, nor is a child the exclusive property of either parent. The role and position of the other parent must be taken into account when making decisions that affect the child. Being a parent is binding and demanding, but being a good parent means raising a good and happy child who becomes a mentally balanced adult. That is the foundation for later using all acquired skills and experiences for full self-realization and a fulfilling life.”
A key guarantee that the court will decide in the best interests of the child is the child’s right to freely express their own opinion in all matters that concern them. In proceedings concerning a minor, the child has the right to be heard, and the child’s opinion must be given due weight in line with their age and maturity (§ 43(1) of the Family Act).
Therefore, in the court proceeding, the court will also consider which school your son prefers.
If the father refuses to share the costs associated with your son’s studies in another city (such as dormitory, food, and transport), you may file a petition to modify the amount of child support.
According to § 78(1) of the Family Act: “Agreements and court decisions on child support may be modified if circumstances change. Except for child support for a minor child, a modification or cancellation of support is possible only upon petition.”
JUDr. Veronika Michalíková, MBA