Joint physical custody of a child – conditions

Primarily, when assessing whether the court will entrust a minor child into joint physical custody, regard is paid to the best interest of the minor child, and the court in this case cannot decide to their detriment. This is also confirmed by Section 24 (2) of Act No. 36/2005 Coll. on the Family and on amendments and supplements to certain acts (hereinafter referred to as the “Family Act”), in the sense of which: „If both parents are capable of raising the child and if both parents have an interest in personal care for the child, then the court may entrust the child into the joint physical custody of both parents, if it is in the interest of the child and if the needs of the child will be better secured this way. If at least one of the child’s parents agrees with joint physical custody, then the court must examine whether joint physical custody will be in the interest of the child.“

Based on the above, it can be added that the court focuses primarily on ensuring that the relationship of the minor child with one of the parents is not disrupted, and especially that the arrangement of the exercise of parental rights is beneficial for the child. Circumstances are assessed, such as, for example, the distance between the residences of the parents, i.e., so that the relocation of the minor child is not demanding, thereby ensuring a stable environment for the child. No less essential a condition for entrusting a child into joint physical custody is simultaneously the interest of the parents, as stated in the mentioned Section 24 (2) of the Family Act.

The court also takes into account the following facts: „When deciding on the exercise of parental rights and obligations or when approving an agreement of the parents, the court respects the right of the minor child to maintain their relationship with both parents and shall always take into account the best interest of the minor child, in particular their emotional ties, developmental needs, stability of the future educational environment, and the ability of a parent to agree on the upbringing and care of the child with the other parent. The court ensures that the right of the child to upbringing and care by both parents is respected and that the right of the child to maintain regular, equivalent, and equal personal contact with both parents is respected.“

In accordance with the finding of the Constitutional Court, Case File No. II. ÚS 361/2016-63, which states: „One of the pieces of evidence of the maturity of the parents’ personalities is the ability to agree on alternating upbringing and, with full awareness, to take upon themselves the obligations arising from it. Therefore, alternating upbringing must not be ordered against the will of one of the parents; there is then no guarantee that this parent will actively take upon themselves the obligations arising from it.“

The court will entrust the child into joint physical custody in the event that it is proven that the parents are capable of securing a favorable environment for the child, which is decisive for their mental and physical development. Their duty is cooperation, mutual respect, and avoiding conflicts that could negatively impact the child. This is confirmed to us by the judgment of the Regional Court in Trnava, Case File No. 25 Cop/10/2018, in which it states: „The cultivated behavior of both parents during the execution of joint physical custody is then a fundamental prerequisite for the healthy upbringing of a minor child, through which the child also gains a positive role model for resolving conflict situations in the future.“