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One of the areas of family law is child custody, whether after the dissolution of marriage (divorce) or in the event that the parents do not live together. In a globalized world, people move a lot, so a situation may arise where a foreign court issues a decision and for a certain reason, it is necessary to use it on the territory of Slovakia. In such a case, it is necessary to recognize this decision on the territory of the Slovak Republic so that it can be effective here. Recognition is carried out by a specific pronouncement of a Slovak court or by ordering its enforcement.
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When is it possible to recognize a foreign judgment on the entrustment of a child into personal custody?
Act No. 97/1963 Coll. on private international law and procedural law (hereinafter referred to as the “ZMPS”) negatively defines the cases in which a foreign judgment cannot be recognized in Slovakia.
A foreign judgment cannot be recognized or enforced if:
- Recognition is prevented by the exclusive jurisdiction of Slovak authorities or the authority of the foreign state would not have the jurisdiction to decide if the provisions of Slovak law were used to assess its jurisdiction.
- It is not final or enforceable in the state in which it was issued.
- It is not a decision on the merits of the case.
- The party to the proceedings against whom the decision is to be recognized was deprived of the possibility to act before this foreign authority, especially if the summons or proposal for the initiation of proceedings was not properly delivered to them – the court does not examine the fulfillment of this condition if the foreign decision was properly delivered to this party and the party did not appeal against it, or if this party declared that they do not insist on the examination of this condition.
- A Slovak court has already issued a final decision on the matter, or there is an earlier foreign decision on the same matter that has been recognized or meets the conditions for recognition.
- The child was not given the opportunity to express their opinion in the proceedings on the merits of the case, unless the court waived the hearing because it was an urgent matter, or the child was not capable of expressing their opinion given their age and intellectual maturity.
- Recognition, taking into account the best interests of the child, would be in manifest contradiction with the Slovak public order.
At the same time, the court will not recognize a foreign judgment on the entrustment of a child into personal custody or on contact arrangements with them, at the request of a person who claims that the decision interferes with their parental rights and responsibilities, if the decision, with the exception of urgent cases, was issued without this person having the opportunity to express themselves.
Proceedings regarding the application for recognition of a foreign judgment
The court only acts upon the application of a person who is designated as a participant in the foreign judgment or a person who proves that they have a legal interest in the matter.
Where to submit the application for recognition?
The competent court is the District Court in whose district the child resides. If the child does not have a residence, the court in whose district the child stays. If there is no such court, then the Municipal Court Bratislava II is competent for the proceedings.
The applicant may submit the application for recognition of the foreign judgment concurrently with the application for its enforcement or separately. The applicant will typically seek separate recognition when they do not yet have an interest in the enforcement of the decision, but by its recognition, they will want to preventatively act against the removal of the child, especially by the other parent during the exercise of the right of contact on the territory of another state. Also, a situation may arise where the parent who has the child in their power, even though the foreign decision entrusted the child to the upbringing of the other parent, will try to prevent the possible legal effects of this decision on our territory by pronouncing the non-recognition of the foreign decision. (C. H. BECK Commentary – Act on Private International Law and Procedural Law)
Who are the participants in the proceedings?
The participants in the proceedings are the applicant together with the persons against whom the decision is to be recognized. In the event that the applicant does not have a residence in Slovakia, they are obliged to choose a representative for the delivery of written documents.
Application for recognition of a foreign judgment
The essential elements of the application for recognition of a foreign judgment are:
- designation of the competent court
- specification of the applicant
- designation of the matter it concerns
- what is pursued
- signature of the applicant
- date of signature
- designation of the foreign judgment
- name of the authority that issued the decision
- date of finality of the foreign judgment or information on its enforceability
- list of documents attached to the application
The application must be submitted with the necessary number of copies and with attachments so that one copy remains at the court and so that each participant in the proceedings receives one copy in case it is submitted in paper form.
The attachments to the application are:
- original or officially certified copy of the foreign judgment in full wording
- confirmation from the competent foreign authority on the finality or enforceability of the foreign judgment or on the fact that the decision can no longer be challenged by an ordinary appeal
- documentary evidence that there is no obstacle to recognition (e.g., the decision is not final) or a declaration by the other participant that they do not insist on its examination
- officially certified translations of the attached documents into the Slovak language
Court decision
The court typically does not order a hearing. It will only do so if one of the participants submits objections within 15 days of the delivery of the application. The court decides on the recognition of the decision on the entrustment of the child into personal custody by a resolution.
