Parental Agreement on Rights and Obligations Concerning Children

QUESTION:
Can I and the child’s father agree on the care of our daughter by way of an agreement outside of court? What if he subsequently fails to comply with it?

ANSWER:
The so-called parental agreement on the adjustment of parental rights and obligations towards a minor child is an instrument regulated by Act No. 36/2005 Coll., the Family Act (hereinafter the “FA”), contained in the provisions governing the conditions, course, and legal effects of divorce (§ 24 FA et seq.). Where the court dissolves the marriage of parents of a minor child, in the same decision it shall also “determine the exercise of their parental rights and obligations towards the minor child for the period after the divorce” (§ 24(1) FA). This determination covers, in particular, issues of personal care, representation, management of the child’s property, and provision of maintenance for the minor.

It is important to note that a court decision on the adjustment of the exercise of parental rights and obligations may be replaced by a parental agreement (§ 24(4) FA). The cited provision further states that “the agreement must be approved by the court, otherwise it is unenforceable.” This means that such an agreement will be valid even without court approval; however, in the event of a breach by one of the parents, the other parent will not be able to seek judicial enforcement.

When assessing the agreement, the court does not rely solely on the will of the parents (already expressed in the agreement itself), but gives primary consideration to the best interests of the minor child, including the child’s emotional and developmental bonds and the stability of the future upbringing environment (§ 24(5) FA).

A parental agreement may be drafted and submitted to the court even during ongoing divorce proceedings, and even directly at a hearing. Since the law does not prescribe any particular form for such an agreement, it may be concluded orally or by way of a record drawn up directly at the court hearing (source: Bános, Family Act – EPI Commentary). If approved by the court, the parental agreement becomes part of the enforceable divorce decision (§ 25(1) FA).

What is a parental agreement?
The Family Act does not define the parental agreement as a distinct legal instrument. Its form is not regulated, and it is often difficult to determine its validity, binding effect, or enforceability. The Act also does not set out the formal requirements of such an agreement. Nevertheless, certain elements should be included, such as:

If the parents do not agree on who shall receive the tax bonus and state social benefits, a statutory mechanism determines the beneficiary.

Joint Custody (§ 24 FA)
The court has priority in deciding on the entrustment of a minor to the personal care of parents; if the court does not so decide, the parents may agree on it (§ 24(4) FA). Both parents must consent to joint custody. According to the explanatory memorandum, the joint custody arrangement (“JCA”) is intended to allow parents to maintain the same child-care regime as before divorce/separation or if they continue to live in the same household. Some courts are reluctant to approve a JCA where parents do not live together or their residences are far apart. The explanatory memorandum states that all forms of custody are equal in law.