PARENTAL RESPONSIBILITY

The European law regulates the parental responsibility as well as right to care about a child in a different way than the national laws normally do. The term “parental responsibility” consists of sum of rights and obligations of a person to take care of a child and its property. This means that the person obliged to take care of a child is responsible for his or hers wellbeing (home, diet and clothing), education, the administration of his or hers property and acting on behalf of a child in all legal matters. If the parents share the same household, the parental responsibility is usually executed by both of them. However, if the spouses are divorced, the decision on the future parental responsibility is mandatory. Parents might decide on this matter alone or they can leave court to decide.

Jurisdiction of the Czech courts

Even though the parental responsibility is closely connected to the divorce and the jurisdiction is regulated by the same Council Regulation (EC) No 2201/2003, the jurisdiction is with respect to the interest of a child regulated differently than the jurisdiction for the divorce.

The Czech courts can decide on the parental responsibility if:

• the child is habitually resident in the The Czech Republicat the moment of motion for adjustment of the parental responsibility.
• a child was kidnapped and prior to the kidnapping had habitual residence in the Czech Republic.

When a child is not habitually resident in the Czech Republic, the jurisdiction over the divorce still lies with the Czech courts as long as they are deciding on the parental responsibility together with the divorce and if:

• at least one of the spouses conducts its parental responsibility towards a child, and
• spouses or other persons with the parental responsibility concurred on the jurisdiction of the Czech court in the time of the commencement of the proceedings, and
• it is the best interest of a child.

The Czech courts also have the jurisdiction in matters concerning the parental responsibility in other proceedings than divorce proceeding, if:

• a child has a close connection to the Czech Republic, particularly because one of the holders of parental responsibility is habitually resident in the The Czech Republicor that the child is a citizen of the Czech Republic, and
• the jurisdiction of the Czech court was explicitly or in other similar way acknowledged by all parties at the beginning of the proceedings, and
• it is the best interest of a child.

When jurisdiction of the Czech courts cannot be determined by the abovementioned rules, the Czech courts still have jurisdiction if the child is in the Czech Republic.

In exceptional cases, when the Czech court reaches a decision that it is in the best interest of a child, it can:

• suspend the proceedings and invite the parties to file a petition to a court in a different member state to which the child has a substantial relation, or
• request a court in a different member state, to which the child has a substantial relation, or, to assume jurisdiction.

Governing law

The governing law for the parental responsibility is not regulated by the European law. The Czech Republic, as well as the majority of the EU member states, is member of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (hereinafter as the “Convention”).

In general, the Convention sets forth that the state, or its relevant court, decides following its national law. That is why the Czech court will apply the Czech law. In exceptional situations and in if it is in the best interest of the child, the law of the state, to which a child is closely connected, might be taken in consideration.

The performance of the parental responsibility itself is governed by the law of the state in which the child has its habitual residence.

Parental responsibility according to the Czech law

In the Czech law the parental responsibility is governed by the sec. 858 et seq. of the act no. 82/2012 Coll., the Civil Code (hereinafter as the “Civil Code”).

The term parental responsibility consists of rights and obligations of parents consisting in the care of the child, for example:

• securing ordinary physical, emotional, intellectual, and moral growth of the child,
• representation of the interest of a child,
• administration of his/her property.

According to the Czech law, the parental responsibility begins by the birth of the child and lasts until a child gains full legal capacity. The legal institute of parental responsibility serves to secure the best possible development of a child until he or she can act on its own.

Parental responsibility belongs to both parents, provided that it is not limited by a court, a both parents shall carry out the parental responsibility in concordance and in best interests of the child.

Court might limit the parental responsibility or restrict its performance if:

• a parent does not orderly carry out its parental responsibility and the best interest of a child requires to do so,
• the legal capacity of a parent is limited by a court decision.

The court can strip parents of their parental responsibility if:

• The parent misuses or gravely neglects the parental responsibility
• The parent commits a wilful crime against his or her child

Together with the decision on cancelation or limitation of a parental responsibility, the court always decides on the right of a parent to have contact with a child as well.

If parents are not able to reach an agreement about important matters of the child, especially selection of the school, permanent stay etc., such matter shall be decided by court upon motion of one of the parents.

In case of divorce, it is mandatory for the period before the decision on the divorce, to be decided about parental responsibility. The court shall take into consideration proposals of both parents or accepts agreement of both parents as long as it is not in conflict with the best interest of the child. When considering the extent of a parental responsibility, the court considers not only relationships between child and parents but also the relationships between the child its siblings and grandparents.

The court can decide on the parental responsibility for the period before and after divorce as follows:

• exclusive custody of one parent,
• shared custody of both parents,
• joint custody of both parents if both of them agree.

Nowadays, many courts begin to apply the so called Cochem practice, when the parental responsibility is a result of detailed agreement of both parents which besides care and maintenance reflects a conclusions of parents on major matters of a child in the future which can prevent many future conflicts and disputes.

Current practise of courts originates from the right of a child on both parents and both parents have right and obligation to take care of a child.

If a child is subject to the exclusive custody of one of the parents, he or she has right to maintain relationship with the other parent. Similarly, the parent has right to maintain relationship with the child if the court have not decided otherwise. The parent who was entrusted with the exclusive custody is obliged to prepare the child for the contact with the other parent, allow this contact and cooperate. If the parent who was entrusted with exclusive custody permanently or repeatedly prevents the contact of the child with the other parent without valid reason, this behaviour might form a base for a new judicial decision on the custody.

The parents should reach agreement on the contact of the child with his parent to whom the custody was not entrusted. In case that the agreement is not reached the court shall decide on the contact with the child.

If the child is entrusted to exclusive custody of one of his parents, the child has right to be in contact with its other parent in the extension that is in its best interest same as the parent has right to be in contact with the child. Every parent must refrain from anything that could harm the relation between the child and the other parent or its education. The parents must inform each other on important matters regarding the child and its interests.

If in the best interest of a child, custody can be entrusted to a third person other than its parents.

Shared custody means that both parents alternatively share the custody. The time reserved for a parent to spend with the child is for each parent same or similar. The intervals between respective time periods may vary from days to weeks and in some cases even more. So called unsimilar shared custody is also possible.

Joint custody is similar to the shared custody however it does not stipulate the time periods for each parent. The parents themselves must reach an agreement regarding custody according to their needs. Joint custody represents the formal measures of the lowest intensity.