Joint Physical Custody of Young Children

In the event that the parents are unable to reach an agreement, the court may order joint physical custody upon the petition of one of the parents, even if the other parent does not consent thereto.

In accordance with Section 24(2) of Act No. 36/2005 Coll. on the Family, as amended, “if both parents are capable of raising the child and if both parents express an interest in personal care for the child, the court may entrust the child into the joint physical custody of both parents, provided that it is in the best interests of the child and that the needs of the child will be better secured in this manner. If at least one of the child’s parents consents to joint physical custody, the court must examine whether joint physical custody will be in the best interests of the child.”

The Act does not explicitly state the intervals or the ratio of days for which the child may remain with one of the parents. For the most part, the court endeavors to determine joint physical custody in an “equal” ratio; however, the parents’ circumstances may not always permit this, which the court will take into consideration.

In the case of joint physical custody, the court does not customarily award child support, as it is presumed that the parents will fulfill their maintenance obligations within the framework of personal alternating care. However, should the income of one parent be significantly higher than that of the other, the court may rule on child support. The primary reason for this is to ensure the child enjoys an equal standard of living with both parents during joint physical custody. Read more on when the court will entrust a child into joint physical custody.

Joint Physical Custody when the Mother Object

First and foremost, it is important to recognize that in any judicial proceeding where the custody of a minor is being decided, the paramount consideration is not the interest or the vision of either parent regarding the “fate” of their child, but precisely the best interests of the minor (Article 5 of the Family Act, hereinafter referred to as the “FA”).

The aforementioned principle is also reflected in Section 24(3) of the FA, according to which: “If both parents are capable of raising the child and if both parents express an interest in personal care for the child, the court may entrust the child into the joint physical custody of both parents, provided that it is in the best interests of the child and that the needs of the child will be secured in this manner. If at least one of the child’s parents consents to joint physical custody, the court must examine whether joint physical custody will be in the best interests of the child.”

It follows from the cited provision that even if the mother insists that the child be entrusted exclusively into her sole personal custody, it is sufficient for the father to express his will for the child to be entrusted into the joint physical custody of both parents for the court to consider this option. The key factor here—again—will not be the mother’s wish, but the “best interests of the child.” The court will incline toward the alternative that better corresponds to the needs of the minor.

According to the findings of the Regional Court in Nitra, Case No. 9CoP/33/2019: “The Convention on the Rights of the Child stipulates that the best interests of the child must be a primary consideration in all actions concerning children. It is undeniably in the best interests of the child to be primarily in the care of both parents, and if that is not possible, then with the parent who has better prerequisites for it, including, inter alia, recognizing the role and importance of the other parent in the child’s life and being convinced that the other is also a good parent. The mother’s objection to joint physical custody can only be relevant if it is based on reasons that are capable of intensively and negatively interfering with the best interests of the child. If the parent’s objection to joint physical custody is based on an irrational or unexaminable reason, or if it is proven in the proceedings that the objection rests on a reason that demonstrably has no negative impact on the best interests of the child, the courts cannot base a decision denying the petition for joint physical custody on such an objection.”

The aforementioned legal opinion relies on the relevant resolution of the Constitutional Court of the Czech Republic, Case No. III. ÚS 1206/09 dated January 5, 2010, in which the court stated the following: “The Constitutional Court pointed out that if a parent’s objection is obstructive, unjustified, or lacks relevance in relation to the upbringing of the child, the court cannot resign from ordering joint custody on these grounds. In the case under review, it was essential to ascertain why the mother was unwilling to cooperate with the father on the upbringing in the best interests of the minor child. The Constitutional Court emphasized that entrusting a child into the sole custody of one of the parents must not be an expression of concession to the mutual rivalry between the parents.

The Constitutional Court concluded that from the perspective of the child’s best interests, the courts of general jurisdiction—by failing to focus sufficiently on the evidence, or by allowing the mere assertion of the mother to influence the decision on the merits without subjecting her reasons to a test of capacity to interfere with the child’s best interests—could not ascertain which parent opens up greater space for upbringing to the other parent in the best interests of the child. It is undeniably in the best interests of the child to be primarily in the care of both parents, and if that is not possible, then of the parent who has better prerequisites and simultaneously recognizes the role and importance of the other parent in the child’s life.”

Petition for Entrusting a Minor into Joint Physical Custody

The legal basis for entrusting a minor into joint physical custody is Section 24(3) of the Family Act (hereinafter referred to as the “FA”).

In a petition (motion) for entrusting a minor into the joint physical custody of both parents, the petitioner (one or both parents) is obliged to state the reasons that attest both to the capacity of both parents to raise the child and to their interest in alternating the care of the minor. It should be sufficiently clear from the motion why joint physical custody is in the best interests of the minor and why the needs of the minor will be best secured in this manner.

Furthermore, it is necessary to specify the regime of joint physical custody in the motion, i.e., in what time intervals it will be executed, when and at what location the handover and takeover of the child will occur, at which address the child will have their permanent residence, etc.

It is not necessary to address the issue of child support in the motion, since pursuant to Section 62(6) of the FA: “If a minor child is entrusted into the joint physical custody of the parents, (…) the court may also decide not to determine child support during the duration of the parents’ joint physical custody.”

Joint Physical Custody and School

If the parents of a minor separate and care for their child under a joint physical custody regime, sooner or later it will be necessary to resolve the question of which school the child will attend and how the parents will divide between themselves the school expenses (school supplies, fees, school meals, etc.) and extracurricular activities.

Disagreements between parents regarding which school their child will attend can be resolved pursuant to Section 35 of the Family Act (hereinafter referred to as the “FA”), according to which “if the parents do not agree on essential matters related to the exercise of parental rights and obligations, in particular (…) on preparation for a future profession, the court shall decide upon the motion of either parent.”

As also explained by the Regional Court in Trenčín in its judgment Case No. 5CoP/45/2022 dated November 2, 2022, “(…) if a mother, to whose personal care children have been entrusted, expresses an interest in moving to a new place of operation, she does not require the father’s consent for such a step. On the other hand, however, if she wishes to transfer the children from their original primary school to a new primary school, even if it is located in the new place of operation of both the mother and the children, she requires the father’s consent for such a step.”

In practice, the use of the institute of so-called interim measures (injunctions) is relatively common, whereby one parent against the other, or both mutually against each other, may seek to have the court grant, for example, the mother instead of the father consent to the transfer and enrollment of the minor into another school.

Pursuant to Section 388(1) of Act No. 160/2015 Coll., the Civil Dispute Procedure Code (hereinafter referred to as the “CDPC”), “The court may order an interim measure if it is necessary to urgently regulate relations or if there is a concern that enforcement of a judgment will be jeopardized.”

The conditions for ordering an interim measure in proceedings concerning a minor were addressed in detail by the Regional Court in Trnava in its judgment Case No. 14CoP/53/2023 dated August 18, 2023: “The purpose of interim measures in matters concerning minor children is to provide preventive protection of their rights and interests prior to their violation or endangerment. The general principles characterizing the institute of an interim measure also apply to proceedings in matters concerning minors, in which the courts are obliged to protect the interests of minor children as a matter of priority and to preferentially provide enhanced protection to their rights. In proceedings concerning the care of the court for minor children, when ordering an interim measure, the court is obliged, in the best interests of the minor child, to carefully consider whether all statutory conditions for such a measure are met. For the court, the priority is the best interests of the minor child and the creation of a state of just balance between the interests of the child and its parents, whereby special significance is attached to the interests of the child, which shall take precedence over the interests of the parent and do not allow the parent to enforce such measures that would jeopardize the health and development of the child. However, as a matter of principle, an interim measure cannot prejudge the rights and interests of the parties, and the court may proceed to order an interim measure depending on the specific circumstances, whereby it must carefully consider whether all statutory conditions for such a measure are met. An interim measure may therefore be ordered if the court considers it proven that the resolution of the minor child’s situation brooks no delay. Such a decision allows for the prompt and flexible resolution of situations where immediate intervention by the court is required. In the case of minors, this will, in principle, involve an intervention into a state whereby their maintenance, upbringing, or other important interests are immediately threatened.

It is also evident from the statutory regulation of the interim measure that the court, when deciding upon it, does not ascertain all the facts that it would have to ascertain in the case of a final decision on the merits, and restricts itself only to the certification of the most basic facts from which the necessity of a temporary regulation of relations can be inferred, whereby it is always necessary to assess whether this temporary regulation of relations does not constitute an interference with the fundamental rights of individual parties beyond the necessary extent and whether the temporary regulation of relations pursues a legitimate aim. Interim measures regulate not only the factual relations of the parties, but they also regulate legal relations, albeit only temporarily. In the proceedings, the court must primarily examine whether the petitioner’s claim is certified and whether it is necessary to issue the interim measure, i.e., the urgency of the situation. The necessity of the regulation is left here to the sound discretion of the court.”

Hello, First and foremost, it must be stated that the term “joint physical custody” (striedavá osobná starostlivosť) is used in Act No. 36/2005 Coll., the Family Act (hereinafter referred to as the “FA”), exclusively in connection with divorce and the regulation of parental rights and obligations for the period after divorce. In this context, joint physical custody is a regime of care for a minor that is determined by the court concurrently with the divorce of a marriage.

Pursuant to the first sentence of Section 24(3) of the FA, “A decision on the regulation of the exercise of parental rights and obligations may be replaced by an agreement between the parents.” This agreement is submitted to the court for approval. From the perspective of family law, it is preferred that the parents reach an agreement between themselves regarding the exercise of parental rights and obligations in relation to their minor child for the period after divorce. The court regulates parental rights and obligations by way of a decision only when the parents fail to reach an agreement. In this decision, the court either approves the rules of joint physical custody agreed upon by the parents or establishes the rules itself. Both parents are bound by the decision on the regulation of the exercise of parental rights and obligations.

The parents of a minor may also initiate proceedings for the regulation of the exercise of parental rights and obligations even if they are not married. In such a case, the court will proceed in the same manner as it would in divorce proceedings. A petition to initiate these proceedings indicates that the parent/parents consider it necessary for the court to intervene in their family affairs and regulate the exercise of their parental rights and obligations differently from their (mutually conflicting) expectations. However, until the court’s decision becomes final and legally effective, the only rules of joint physical custody that exist are those agreed upon—legally non-bindingly—by the parents.

You can read more about the topic of joint physical custody in our article at this link.

Hello, The Family Act (hereinafter referred to as the “FA”) provides an answer to this question only indirectly. Pursuant to Section 24(3) of the FA, the fundamental prerequisites for entrusting a child into joint physical custody are the capacity of both parents to raise the child even after divorce, and above all, their interest in the child. Indeed, a child has the right to the care of both parents, and even if entrusted into the sole personal custody of only one of them by a court decision, the child should be permitted to maintain contact with the other parent at least to such an extent that the principle that “both parents possess parental rights and obligations (§ 28(2) of the FA)” and “husband and wife are equal in rights and duties (Article 1 of the FA)” is fulfilled to the greatest extent possible.

The issue of the so-called impediments to joint custody was addressed in detail by the Constitutional Court of the Czech Republic in its judgment Case No. I. ÚS 3065/21 dated February 28, 2022.

Regarding the age of the minor as a potential impediment to joint custody, the court stated that “it is not possible to preclude joint custody solely with a general reference to the younger age of the child, unless the child is dependent on the mother due to breastfeeding. Joint custody is feasible even for younger children, for instance at the age of three, with appropriately adjusted alternating intervals, and it can certainly not be precluded with reference to a young age in the case of a five-year-old child.”

The court further noted that although “the stability of the child’s educational environment is an important factor, it cannot in itself constitute an argument for precluding joint custody. Otherwise, the status quo established by the initial decision on the merits would de facto be preserved, because by rejecting a change in the educational environment (and thus prolonging the state of affairs following the initial decision), the educational environment becomes further stabilized, or rather, the child becomes increasingly accustomed to it. As a result, a change might never occur.” On this matter, the court adds that “If, therefore, the courts failed to consider a change to the existing care model upon the expiration of parental leave, or alternatively after the child’s entry into kindergarten, or if they were to even reject such a change solely with reference to the necessity of stability of the educational environment, they would de facto unjustifiably preclude the joint custody option.”

Furthermore, “the absence or a lower level of communication between the parents cannot in itself lead to the preclusion of joint custody, as this would amount to a concession to the mutual rivalry of the parents and would open up space for the abuse of position by the parent who has hitherto had custody of the child. The courts of general jurisdiction should, if necessary, examine the reasons for the low quality of communication and attempt to improve it. The mere entrustment of a child into joint custody may serve as an impulse to strengthen communication and cooperation between the parents. However, one cannot rule out a situation where, despite all efforts by the court, mutual communication remains so conflict-ridden that it precludes entrusting the child into joint custody. In such a case, however, the courts of general jurisdiction must assess which parent is more responsible for the inappropriate communication and reasonably take this finding into account when deciding on custody and the scope of contact, whereby this reasoning must be clearly stated in the justification of the decision.”

Conversely, “according to the case law of the Constitutional Court, a parent’s work obligations may be taken into account as a factor when deciding on custody.” The court further stated that “Work obligations may constitute an impediment to joint custody only in exceptional cases that prevent the parent from caring for the child over extended periods of time (typically a soldier on a foreign mission, a truck driver with long-term trips abroad, etc.). A standard employment relationship under the Labor Code, even though it may be demanding from various perspectives (as is the case with a chief physician), does not belong among such exceptions, even if the complainant has additional (very low-fte) part-time engagements outside of the main employment relationship. The opposite would essentially result in discrimination based on occupation. Persons in demanding professions would be disadvantaged compared to ‘ordinary’ employments. The parent would also be faced with a difficult decision—either to retain the job position and waive joint custody, or to find a less demanding job that the court would deem more suitable. This, by the way, would frequently lead to a reduction in income (or profit in the case of business activities), and consequently to a request for a reduction in child support, which could trigger further conflict with the other parent regarding earning capacity.”