When parents argue about their children and cannot agree on issues relating to custody and contact rights, the courts are called in. The concept of the “best interests of the child” is often something that is strained on all sides. In custody proceedings, each parent usually claims to be in the best interests of the child and courts also have to focus on the best interests of the child in proceedings concerning custody and/or contact rights. Court proceedings involving children are stressful for parents and children. Courts, experts, visitation cafes and family court assistance are equally challenged and busy, and it often takes (too) long for those affected to see any progress.
What is meant by custody and right of contact?
What does custody actually mean? In simple terms, the term “custody” refers to parental duties towards children. On the one hand, it includes the care and upbringing of the child, but also legal representation and asset management. Formerly also known as visiting rights, contact rights are the right of the parent who does not live with the child to have personal contact with the child. It is also a right of the child. Contact rights should not only take place during the child’s free time. It should, if possible, enable both the child and the parent to experience everyday life together.
Things to know about custody/contact proceedings
Custody proceedings are conducted in so-called “non-contentious proceedings”. The name is somewhat misleading, because in fact such proceedings are very firmly contested, but what it means is that the non-contentious proceedings are more flexible and less formal than the “contentious” proceedings. In simple terms, custody proceedings do not take place in a large jury courtroom. Nevertheless, it is not pleasant. The district court in whose district the child’s place of residence is located has jurisdiction. Parents can submit an application to the competent court to regulate custody or contact, for example. You do not need a lawyer for this, but if you want to be represented, it must be by a lawyer. It is also important to know that there is no reimbursement of costs in proceedings relating to custody/contact rights. This means that if you decide to consult a lawyer, you must bear the costs yourself and, even if the court has granted your application, you cannot ask the other parent to bear your legal costs.
How do custody and contact proceedings work in practice?
Custody and contact proceedings depend heavily on the individual case. If there is an acute risk to the child’s wellbeing, for example, the court will quickly make orders to protect the child. However, as lawyers are very often confronted with the question of what such proceedings might look like, a common way a custody procedure can look like is described here:
Normally, custody proceedings start with an application by one parent. Either one parent wants to be involved in custody or perhaps the other parent does not want the other parent to be involved in custody any longer. It is therefore a question of joint or sole custody. In most cases, the court will serve one parent’s application on the other parent and ask them to comment on it and present their own view of things. It is advisable to comply with this request for comments in due time, as otherwise the court may assume that you agree with the statements in the application.
What happens next?
In most cases, the court will schedule a hearing after both parents have submitted written statements. At this hearing, the court will try to work towards an agreement between the parents and may also question one or both parents about the situation. If an agreement does not appear to be within reach and further (expert) expertise is required, the court can send the case to the family court assistance service (a service staffed by psychologists and social workers who support courts in child custody proceedings) or to an expert witness in the field of child psychology. The court will usually ask specific questions, e.g. which custody arrangement is best for the child or which contact arrangement, etc. The family court assistance draws up an expert opinion and makes recommendations after evaluating the situation. Experts prepare an expert opinion on the questions posed by the court. In some cases, an expert is called in even after the family court assistance has issued an expert opinion. Family court assistance does not have to be paid for by the parents. The costs of an expert opinion can amount to several thousand euros and must be paid equally by both parents.
Once the expert opinion of the family court assistance and/or the expert has been completed, the court can schedule another hearing. Based on the findings, another attempt can be made to reach an agreement between the parents. However, the court can also make a decision immediately.
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