I have updated my world wide search for information on various custody regimes. Within this information are excerpts from a presentation by Peter Tromp, PhD, child and educational psychologist, President of the Father Knowledge Centre Europe, and Chair of the Dutch Foundation for Children, on Access and Equal Parenting at the International Conference on Family and Equality “Justice and Father’s & Men’s Dignity” on 2-4 January 2009 in Drama, Greece.
If you want an update on the current European movement toward custody arrangements and insights into the current consequences of the adversarial process this is a worthwhile read. I would recommend studying it if you are currently before the courts as it might have information to bolster your affidavits with respect to sole custody negative outcomes or step parent involvement in sole custody mother situations. Although the negatives parallel our own it is interesting to hear it from a psychologist deeply immersed in the dysfunction.
His comments on the Belgium situation are also up-to-date and he gives a preliminary look at the new Dutch Law implemented on January 1, 2009. He is Dutch and gives candid comments on the "legislating from the bench" judiciary of his homeland. He also gives a more detailed analysis of the Dutch law in Appendix "A" at the end of the presentation. The PDF is a worthwhile addition to CEPC's library.
The presentation is quite long but also detailed and one of the best overviews I have seen recently. You can visit the web site here http://fkce.wordpress.com/
2009/01/03/13/ and download the PDF of the presentation on site.MJM
First though a short video to offer thoughts on why its best for children to have two parents in their lives. As the video states its the best child support out there.
In 2011 the Czech Republic passes shared parenting law.
Lower house passes amended family law
According to the legislation, courts should always order shared care if both parents want to look after the child and are capable of it and if it is in the child's interest.
The amendment also modifies the deadline for paternity denial, on the basis of the Constitutional Court's verdict.
The amendment was supported by deputies across the parties.
Its opponents point out that children in shared care must change their home constantly which is not positive for their healthy development.
Government human rights commissioner Monika Simunkova Tuesday also criticised the amendment. Every case needs an individual approach, she said.
The centre-right government also raised objections to the bill, pointing out that the court should take the child's wish into consideration before deciding on shared care.
Without meeting this condition, the Czech Republic may violate the U.N. Convention on the Rights of the European Convention on the Exercise of Children's Rights, the government says.
The amendment's author Pavel Stanek (senior government Civic Democrats, ODS), for his part, stressed that Czech courts usually place children in the custody of their mother without justifying the decision.
About 90 percent of children end up in the mother's care after divorce in the Czech Republic, while shared care is applied in about 3 percent of cases only, he recalled.
The amendment also changes the deadline for paternity denial from the current six months after the baby's birth to six months since the man starts suspecting that he is not the biological father, but maximally until the child's three years of age.
This regulation should apply only to children born in wedlock.
USA State Department
SwedenDISCLAIMER: The information in this flyer relating to the legal requirements of specific foreign countries is provided for general information only. Questions involving interpretation of specific foreign laws should be addressed to foreign legal counsel.
GENERAL INFORMATION: Sweden is a civil-law country. Judicial proceedings in a civil-law country generally differ from those in the United States, a common-law country, in several significant ways. For example, juries are not used. Legal cases are heard and decided by a judge or panel of judges that can include lay judges. Evidence can be presented and arguments can be made in oral hearings, but such hearings tend to play a secondary role, supplementing extensive written submissions to the judge. The judge normally can play a more active role in proceedings than is common in U.S. courts. Whereas a U.S. judge may be limited to serving, in effect, as a referee between two adversaries, judges in a civil law country might, for example, seek evidence independently of what either side presents. In Sweden, the civil courts handle divorce and custody cases, while Hague cases are heard in Stockholm City Court. Swedish courts do not generally recognize, register, or enforce foreign court orders regarding custody, although a U.S. statute or court order may be considered in adjudication of a Hague case to determine if a removal/retention was “wrongful.” The Swedish government provides Legal Aid for individuals involved in Swedish custody proceedings and in Hague cases, depending on the level of income, but regardless of nationality.
Custody: In Sweden, married parents have joint custody of a child from birth until the child reaches the age of 18. Under Swedish law, a mother who bears a child out of wedlock is automatically initially granted sole custody of the child. Upon the birth of such a child, the Swedish Tax Authority (responsible for birth registrations in Sweden) informs the social welfare board that a child has been born out of wedlock. The social welfare board, in turn, contacts the mother and requests that both parents appear and execute an acknowledgement of paternity. The parents are given the opportunity to decide if they will agree to joint custody. The documents are then approved by the social welfare board and forwarded to the Tax Authority. The Tax Authority maintains up-to-date records on the child’s custodial parent(s), known in Sweden as “vardnadshavare.” Swedish authorities report that out-of-wedlock fathers have the same custody/access rights as every other father. The U.S. Embassy in Stockholm has found, in the cases known to it, that fathers of children born out of wedlock have rarely been able to obtain custody or visitation without the mother’s consent.
From: Library of Congress:
Canada The 1998 report, For the Sake of the Children, rejected a formulaic approach to dealing with contact, recognizing the diversity of family life and arguing that individualized, informal agreements made by parents were more likely to be in the child's best interests. A 2002 study, of Canadian mechanisms for contact dispute prevention, resolution and enforcement, observes that 'most separating or divorcing couples appear to resolve their access arrangements without high conflict or extensive use of the courts'. Services to support separating and divorcing couples are delivered at provincial levels, although some receive federal support. There are different and wide mixes across provinces of counseling, mediation and information, parenting plans and parenting education services available. Dispute resolution services include counseling, mediation and arbitration for access enforcement. Contact centres offer supervised or supported access. Sanctions available to the courts for access enforcement also vary, and can include civil contempt, fines, imprisonment and compensatory access.
From Scottish Government Sources
Denmark In Denmark, divorce is dealt with as an administrative matter and there are three types of measures that aim to support children and parents in relation to child custody and/or contact: 1) The Regional Government administration deals with decisions on child custody and contact and offers free, professional, voluntary and confidential counselling to parents who disagree over custody or contact; 2) Mediation is offered free of charge to parents who disagree about custody or contact. Both parents must agree to attend and there are two mediators, one lawyer and one person with experience in child cases; and 3) meetings for children whose parents live apart, so that they can meet with other children of the same age and with similar problems. Counsellors with experience in child cases attend these meetings.
The legal system is preparing for a rush of fathers seeking joint custody of their children when revised parenting laws go into effect next week.
The new parental law, which becomes valid on 1 October, is designed to give additional rights - and responsibilities - to both fathers and mothers.
While current, decade-old legislation requires parents to reach an agreement before joint custody is granted, the new law establishes co-parenting as the norm - even after a divorce.
Under the new rules, joint custody can only be repealed if serious concerns for a child’s safety such as abuse come to light.
The law requires that after a divorce, parents share a range of responsibilities ranging from taking children to school to ensuring the former spouse has information about school activities. Children themselves will also have more say under the legislation, as child welfare authorities will interview them on parental custody matters.
Experts are concerned, however, that the revisions could result in a flood of new law suits. Anja Cordes, chairman of the national organisation of lawyers dealing with custody cases, was a member of the committee, which drew up the law’s proposals.
She stated that although the political will was in place to establish co-parenting after a failed marriage, feuding parents might lack the ability to put their differences behind them for the good of the child.
‘It will take time before parents learn to separate parenting with partnership and to stop seeking revenge through their child,’ she told Berlingske Tidende newspaper.
She also predicted longer processing times for child welfare authorities in future cases, as parents who had lost custody cases in the past seek the chance to have their case retried.
Anette Hummelshøj, the head of Department of Family Affairs, admitted the new law could place an additional strain on the legal system.
‘But our expectation is that when the courts have established a clear line for the legal area, a higher number of parents will be able to settle either inside or outside the courts.’
The whole of the following presentation is available at the Father Knowledge Centre Europe – FKCE Benefits of post-divorce shared parenting and the situation in the Netherlands, Belgium and Germany
Let me give you some brief summaries by country on the present state of Shared Parenting Legislation in the countries of the European Union:
1. Italy now has a mix of joint legal custody and elements of joint physical custody since a law change that came into effect on 16th March 2006.
2. France has a mix of joint legal custody and elements of joint physical custody (Residence Alternee) that came into effect in 2002. An estimated 15% of French children of divorce are now growing up in shared parenting and alternating residence arrangements.
3. Belgium on the initiative of its Socialist Party now has implemented presumptive 50/50 joint physical custody legislation (effective bi-location of the children) after parental separation in both its House of Commons and Senate which came into effect when it was formally published by the Belgian Federal Government on the 4th of September 2006. The new Belgian federal law on bi-location will be discussed at more length in my presentation below.
4. In the Netherlands joint legal custody was implemented in family law by the Dutch Parliament in 1996 making joint legal custody the standard for post-divorce parental authority. And with the new Dutch Law on Continued Parenting after Separation (no. 30145), that went into effect on 1 January 2009, this was followed by the introduction in Dutch family law of the basic principle of the equality of both parents and the presumption of equal parenting (both before and after divorce or separation, and regardless of whether the parents were previously married or not). The new Dutch family law also introduces a strong incentive for separating parents to come up with a mutually agreed parenting plan during the separation and divorce proceedings.
5. Norway still has sole physical custody but its Minister of Justice has already announced (in 2007) a complete family law review based on the principles of presumptive joint physical custody. Up until now, however, this has not yet materialized.
6. Ireland has, since the advent of Parental Equality (the Irish lobby group associated with Liam O’Gogain) circa. 1993, been considering the possibility of a change to laws of joint physical custody – which gives some gauge of the lack of seriousness with which such laws are being considered.
7. In Germany, a professional court intervention model called the Cochem model, based on principles of shared parenting, is gathering strength. This German Cochem court practice model will be discussed at more length in my presentation below. In this model parents are only allowed access to the family court for parental separation and divorce after they have themselves also filed a shared post-divorce parenting plan agreed by and between both of them. The German federal minister of Justice has previously (February 2006) announced future family law reform in which “elements of the Cochem model of multi-disciplinary court orchestrated intervention” are to be integrated into the German family law. Which elements, however, are as of yet unknown. This family law reform at the federal level has, therefore, not yet materialized.
8. Malta also has some form of shared parenting presumption according to Maltese family rights organizations. As of yet, however, it is unclear what is the exact nature of their shared parenting presumption.
9. Spain introduced a new shared parenting law in mid-2005 which is regarded as wholly inadequate by Spanish family rights lobbyists. Government officials and professionals on their own initiative are attempting to introduce policies reintegrating alienated children with their alienated parents and there is a vigorous movement for change.
10. The UK under the present Labour government has, as of yet, no effective shared parenting laws in existence. In his simultaneous presentation at the Drama Conference based on a study of the British Law Commission’s research papers Robert Whiston found that court-ordered shared parenting was commonly practiced in the south part of England in the second half of the last century until it was eliminated by the Children Act 1989 (Whiston, 2009a). At present, the oppositional Conservative Party – which is expected to win the next 2009 elections – has adopted Equal Parenting Family Law Reform as part of its election program. Also some judicially-motivated efforts to introduce norms of shared parenting do exist, in spite of the family-hostile parameters of the present law and fiscal framework.
11. Luxembourg is also said to have introduced post-divorce joint physical custody legislation.
6. Recent developments in family law and family courts in Belgium, the Netherlands and Germany
- It introduces and aims to guarantee in Dutch family law the basic principle of equality for both parents and the presumption of equal parenting both before and after divorce or separation, and regardless of whether the parents were previously married or not.
- It introduces a strong incentive for parents to come up with a mutually agreed parenting plan during the separation and divorce proceedings.
- Adding new but complicated reinforcement possibilities to the toolbox of options available to judges to ensure compliance with court-ordered parenting arrangements.
However, the law also has some distinctly negative features for shared parenting as it once again re-opens the possibilities for the family courts to deviate from the Parliamentary default presumption of joint legal custody. This could give rise to new ways and new reasons for a court to exclude a father from parenting his children. For a more detailed account of the features in the new Dutch family law on parenting after divorce however I further refer to the Appendix A with this presentation.
See below for the wording of each State's Law.
- DISTRICT OF COLUMBIA
- NEW MEXICO
- NEW HAMPSHIRE
DISTRICT OF COLUMBIA:
- the willingness of the parents to share custody;
- the sincerity of each parent's request;
- the parent's ability to financially support a custody arrangement;
- the impact on Aid to Families with Dependent Children and medical assistance;
- the benefit to the parents;
ARTICLE 132. AWARD OF CUSTODY TO PARENTS
SUBPART B. JOINT CUSTODY
The following are some of the best relevant statutes from states which provide a strong preference for joint custody:
2.b. If the court does not grant joint custody under this subsection, the court shall cite clear and convincing evidence, pursuant to the factors in subsection 3, that joint custody is unreasonable and not in the best interest of the child to the extent that the legal custodial relationship between the child and the parent should be severed.
The following two states have case law which make joint custody a preference: