Child custody and upbringing in divorce: how the courts decide

The basis for every court decision on the custody of children is the Family Law, and the central provision is Article 80. According to Article 80, paragraph 1, “in the judgment dissolving the marriage, the court shall decide on the custody, upbringing and maintenance of the shared children.” This means the decision about the children is not something separate from the divorce — it is a mandatory, integral part of the divorce judgment itself. The court cannot dissolve a marriage with minor children without ruling on their fate.

Key is Article 80, paragraph 2, which describes the decision-making procedure itself: “If the parents have not agreed on this, or if their agreement is not in the interests of the children, the court, after obtaining an opinion from the Centre for Social Work and examining all the circumstances, shall decide whether the children will remain in the custody and upbringing of one parent, or some with one and some with the other parent.” Two important things follow from this provision. First, the law gives priority to agreement between the parents — if they themselves agree on who the children will be entrusted to and that agreement is in the children’s interest, the court will as a rule accept it. Second, if there is no agreement or it is not in the children’s interest, the court decides, but only after mandatorily obtaining an expert opinion from the Centre for Social Work.

Article 80, paragraph 3 regulates the right of the other parent: the parent to whom the children are not entrusted has the right to maintain personal relations and direct contact with them, unless the court determines otherwise in view of the children’s interests. Article 80, paragraph 4 provides that the court, at the request of one of the divorced spouses or of the Centre for Social Work, shall modify the custody and upbringing decision “if the changed circumstances so require” — a provision we return to in more detail below.

Besides Article 80, in such proceedings the courts regularly apply the provisions on parental rights (Article 8, which provides that parents have equal rights and duties towards their children), the obligation to maintain minor children (Articles 46, 179, 194, 195 and 196), the involvement of the Centre for Social Work (Articles 83 and 84), as well as the provisions on interim measures during the divorce dispute (Articles 251 and 252). Above national legislation stands the United Nations Convention on the Rights of the Child, whose Articles 3 and 12 the courts invoke when reasoning about the best interest of the child and the child’s right to be heard.

If there is one principle that unites all the analysed court decisions, it is the principle of the best interest of the child. Neither the law nor practice starts from the “rights” of the mother or the father as something to be mechanically measured and divided. The measure is always the child — what is best for its psychophysical development, stability, upbringing and emotional well-being.

In their reasoning, courts consistently emphasise that when deciding on the custody of a child they are “primarily guided by the best interest of the child, taking into account all relevant circumstances.” Those relevant circumstances are not a closed list, but the following clearly stand out from practice:

• the parenting capacities of both parents — the real ability to care for the child, to raise it and to provide a stable daily routine;
• the age of the child and its need for each parent at the given developmental stage;
• the housing and material conditions of each parent, but never as the sole or decisive measure;
• the emotional bond of the child with each parent, as well as with siblings;
• the child’s adjustment in its existing environment — school, friends, neighbourhood;
• the existence of any harmful influences (domestic violence, alcohol or drug abuse, neglect).

It is important for parents to understand that the court does not seek an “ideal” parent, nor the one with the higher salary or larger apartment. The material superiority of one parent is not in itself decisive — in several decisions the courts expressly emphasise that a better financial situation does not automatically mean a better interest for the child, because differences in income are resolved through maintenance, not by taking the child away from the caring parent.

A central and practically unavoidable role in the proceedings is played by the Centre for Social Work (CSW). According to Article 80, paragraph 2, the court is obliged to obtain an opinion from the CSW before deciding on custody. This opinion, usually prepared by an expert team (a social worker, a psychologist, and where needed a pedagogue or physician), is based on interviews with both parents, with the child, and on an assessment of the living conditions at each of them.

The CSW opinion carries great weight in practice, but is not absolutely binding on the court. Courts consistently stress that the opinion “must be comprehensive and reasoned, and must cover the parenting capacities of both parents, the living conditions and the needs of the children according to their age.” When the CSW opinion is superficial, unreasoned or fails to take all circumstances into account (for example, allegations of domestic violence), the appellate courts often quash the first-instance judgment and remand the case for retrial precisely because of that shortcoming. In other words, the quality of the expert finding is a frequent factor that determines the outcome, including in appeal proceedings.

The question that troubles parents most is a practical one: “in my situation, to whom will the child be entrusted?” The answer depends on the facts, but the analysis of decisions reveals several typical scenarios.

Young children and children of a tender age. With younger children the courts often take into account the fact that the child has an increased need for daily care and, in many cases, a stronger bond with the mother in the early developmental stage. Still, this is not an automatic rule in favour of the mother. The courts expressly confirm that “the age of the child is not a legal obstacle to entrusting the child to the custody and upbringing of the father, if that is in its best interest.” So the parent’s gender is not decisive — what is decisive is capacity and the child’s interest.

When the child is entrusted to the father. Although statistically children are more often entrusted to the mother, that is a consequence of the specific circumstances, not of a legal presumption. Among the analysed decisions there are several cases where children were entrusted to, or moved to, the father — for example, when the mother does not show sufficient parenting capacity, when the conditions at the father’s are more favourable, or when changed circumstances require it. The law and practice start from the equality of parents (Article 8), so the father has the same legal starting position as the mother.

The child’s opinion and wishes. The child is not only the subject of the proceedings but also a subject with the right to a voice. Pursuant to Article 12 of the Convention on the Rights of the Child and Article 80 of the Family Law, the court is obliged to take the child’s opinion into account in accordance with its age and maturity. In practice, with older children (for example, aged 14), courts stress that the child must be heard — directly or through an appropriate expert body — and its expressed wish and emotional bond with one parent can be a significant factor in the decision, even when other circumstances (such as the housing question) are not fully resolved.

Domestic violence, alcohol and harmful influences. Where there is evidence of domestic violence, alcohol abuse or neglect, this weighs heavily on the decision. In one characteristic case, the court temporarily entrusted the child to the mother on the basis of a medical report that the child showed a disorder in behaviour and emotions due to conflict situations at the father’s, including aggressive behaviour under the influence of alcohol. Nevertheless, the practice is nuanced: courts stress that domestic violence against one parent is not an automatic ground for changing custody if the violence is not directed at the child and if it was already taken into account in a previous decision. On the other hand, the existence of an urgent protection measure against domestic violence imposed on one parent is regarded as a significant factor that may justify temporarily entrusting the child to the other parent.

Separating siblings. When there are several children, the question arises whether they should stay together. The principled position is that siblings should not be unnecessarily separated, because their mutual bond is part of their interest. Nevertheless, courts confirm that “separating siblings is not in itself contrary to their interest if regular contact is ensured and each parent has the capacity to care for the entrusted children.” Conversely, separation from the mother at a young age together with separation from siblings is assessed as a circumstance that may negatively affect psychophysical development and requires particularly careful reasoning.

Common to all these scenarios is that the court is obliged to give clear and reasoned grounds — to state the facts, compare the parenting capacities and explain why the particular decision is in the best interest of the child. A judgment without such reasoning is regularly quashed on appeal.

Divorce proceedings can last for months, and sometimes years when there are appeals. During that time the child cannot remain in a legal vacuum. That is why the Family Law, in Article 251, provides that “during divorce dispute proceedings the court may, by decision, determine interim measures for the maintenance of the shared children and for entrusting them to custody and upbringing.” The court may determine such measures at a party’s proposal, but also ex officio, which shows the protective nature of the institution.

According to Article 252, interim measures last until the final conclusion of the proceedings. The aim is for the child to immediately obtain a stable situation — to know with whom it lives, who cares for it and how contact with the other parent is temporarily arranged, until the court issues a final decision. In determining an interim measure, the court applies a lower level of certainty than for the final judgment — it is enough that there is a probability that the measure is necessary to protect the child’s interests. In practice, courts also tie these measures to the conditions of the Law on Securing Claims (Article 35), which defines the general prerequisites for issuing an interim measure.

For a parent, this means that even before the divorce ends, they can file a request for the child to be temporarily entrusted to them — especially if they consider that at the other parent there is a danger to the child’s interests or safety. The decision on the interim measure is subject to appeal, but the measure itself remains in force for the duration of the proceedings.

Entrusting the child to one parent does not mean that the other parent “disappears” from the child’s life, nor that they are released from obligations. The two most important consequential issues are maintenance and the exercise of personal relations.

Maintenance. Pursuant to Article 46 and Articles 179, 194, 195 and 196 of the Family Law, parents have the right and duty to maintain their minor children. The parent to whom the child is not entrusted as a rule pays maintenance, the amount of which the court determines according to the child’s needs and the material means of the obligor. Maintenance is neither a punishment nor a reward — it is the child’s right. That is precisely why differences in income between the parents are resolved through maintenance, not through custody: the poorer but caring parent does not lose the child merely because of a lower income.

Personal relations and direct contact. Article 80, paragraph 3 guarantees that the parent to whom the children are not entrusted has the right to maintain personal relations and direct contact with them. The court, guided by the child’s interest, regulates the manner of this contact (for example, weekends, holidays, school breaks). This right may be restricted only when the child’s interests so require — for example, in case of proven harmful influence. The aim is for the child to keep its bond with both parents after the divorce, because that is part of its healthy development.

Many parents mistakenly believe that a custody judgment is irreversible forever. It is not. Article 80, paragraph 4 of the Family Law allows the court, at the request of one of the divorced spouses or of the Centre for Social Work, to modify the custody and upbringing decision “if the changed circumstances so require.”

The key condition is the existence of substantially changed circumstances. This is also the most frequent topic in the analysed appellate decisions. Courts consistently stress several things. First, modification is possible only if new, significant circumstances really exist — usually changes that arose after the previous decision was made. Second, merely an improvement in the situation of one parent (for example, they now have a better apartment or a higher salary) is not enough to take the child away from the other parent; it must be proven that the change is such that the current situation is no longer in the child’s best interest. Third, a circumstance already assessed in the earlier proceedings cannot be used again as a “new” changed circumstance — for example, a conviction for domestic violence that the court already took into account.

On the other hand, circumstances that justify modification are considered to be situations such as: one parent ending up serving a prison sentence, a significant change in living conditions, a documented deterioration of the child’s condition at the parent to whom it is entrusted, or a grown child whose expressed wish and emotional bond now indicate a need for change. Such proceedings again pass through a CSW opinion and are again measured against the best interest of the child.

If you are facing a divorce involving minor children, from the analysis of case law you can draw the following expectations. The court always decides guided by the best interest of the child, not by the “rights” of the parents. Agreement between the parents takes priority, provided it is in the children’s interest. The opinion of the Centre for Social Work is mandatory and carries great weight, but is not absolutely binding. The parent’s gender is not decisive — both the father and the mother start from an equal legal position. Material superiority is not decisive, because differences are resolved through maintenance. During the divorce the child may be temporarily entrusted through an interim measure. Finally, the decision is not set in stone — it can be modified upon substantially changed circumstances.