AKMV 
As traditionally practiced, a court hears and regulates the rights and obligations of parents in respect of a minor child for the period after divorce concurrently with the divorce proceedings. In this article, we shall examine the answer to the question of which court holds jurisdiction to decide in the case of a child residing abroad.
Upon satisfaction of the conditions pursuant to Section 39, Paragraph 4 of the Act on Private International Law and Procedure: “A Slovak court shall have jurisdiction in proceedings for the divorce of marriage, the nullity of marriage, or for determining whether a marriage exists or not, to also regulate the rights and obligations of parents in respect of their common minor child, provided that the child has their habitual residence within the territory of the Slovak Republic, or at least one of the parents holds parental rights and obligations in respect of this child, the spouses have expressly submitted to the jurisdiction of the court, and the exercise of such jurisdiction is in the best interests of the child.”
The provision of Section 39 of the Act on Private International Law and Procedure has undergone a fundamental amendment compared to its original wording. There has been a foundational departure from the principle of nationality in favor of the principle of habitual residence, thereby bringing the text of this provision into conformity with the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (Notice No. 344/2002 Coll.), specifically with its Articles 5, 6, 11, and 12, which possess universal applicability (i.e., they apply in relation to all states, not merely in relation to the contracting states of the Convention). The fourth paragraph of the cited provision preserves the original philosophy of joining divorce proceedings with proceedings for the regulation of parental rights and obligations in respect of a common minor child for the period after divorce. However, its wording has been adapted to the principle expressed in Article 10 of the cited Convention as well as Article 3 of the Brussels II Regulation.
Pursuant to established case law: “…it was proven in the proceedings that the habitual residence of the minor is an EU Member State other than Slovakia, where the minor currently resides and studies. From the petition itself, as well as from the statements pertaining thereto submitted by both the petitioner and the mother, it is evident that the minor attends school in the EU Member State XY (i.e., in a country other than Slovakia) and, therefore, resides in the said country for the predominant part of the year. The concept of habitual residence must not be confused with the permanent residence of the minor. According to the case law of international institutions, in particular the European Court of Justice, the concept of habitual residence is understood as the place which reflects a certain degree of integration of the child into a social and family environment. For this purpose, account must be taken, in particular, of the duration, regularity, conditions and reasons for the stay on the territory of the given State and the family’s move to that State, the nationality of the child, the place and conditions of school attendance, linguistic knowledge, as well as the family and social ties maintained by the child in the said State.”
“In as much as the minor predominantly resides in an EU Member State other than Slovakia, where the minor fulfills their compulsory school attendance and has family and social ties, it must be concluded that their habitual residence is in this country. It is impossible to concur with the statement of the petitioner’s legal representative that the habitual residence of the minor is Slovakia. The fact that the minor is registered for permanent residence within the territory of the Slovak Republic, where the minor resides only sporadically and maintains no social ties, cannot be considered as establishing the habitual residence of the minor.”
Consent of parents to the jurisdiction of a Slovak court
“As regards the further condition resulting from the cited provision, no express consent of the spouses to submit to the jurisdiction of the court was submitted to the court during the course of the proceedings. With reference to the foregoing, it must be concluded that the Slovak court lacks jurisdiction to adjudicate on the regulation of parental rights and obligations in respect of the minor, also for the reason that it would not be in the best interests of the minor, given that the minor resides in another country. The court therefore stayed the proceedings in this part.”
Likewise, when determining jurisdiction in proceedings concerning parental rights and obligations, the habitual residence of the minor is also decisive pursuant to European Union Regulation Brussels IIa, which takes application precedence over the Slovak Act on Private International Law and Procedure. An exception is the situation: “Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child’s former habitual residence shall, by way of exception, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on rights of access issued in that Member State before the child moved, where the holder of the rights of access pursuant to the judgment on rights of access continues to have his or her habitual residence in the Member State of the child’s former habitual residence,” or the express or otherwise unequivocal acceptance of the jurisdiction of another court by the parents, provided, however, that the jurisdiction of such other court is in the best interests of the child.
