Court decisions in favour of joint custody stir public debate

The Czech Republic has one of the highest divorce rates in Europe with one in three marriages –and every second marriage in Prague – hitting the rocks. Custody battles abound and in 95 percent of all cases custody is given to the mother. Now two verdicts by the Czech Constitutional Court, which went in favour of joint custody, have stirred public debate about whether the country is on the brink of a new trend and whether such a trend would undisputedly benefit the child.

Photo: archive of Radio Prague

Women with children who are in the process of divorcing have one certainty – unless they drink excessively, take drugs or are unable to take proper care of their offspring –they will be granted custody rights. Although a 1998 law introduced the concept of joint custody it is rarely ordered by the courts unless a divorcing couple specifically agrees on it beforehand. Petr Švarc, a father of four, sees his children regularly, but says having them for the weekend does not really give him a chance to actively take part in their upbringing.

“You do not help bring them up – that is practically impossible under such an arrangement. You just fill their time as well as you can and keep them happy. But I think that having both role models, being influenced by both parents is essential for children to be able to function well in society when they grow up.”

Gradually pressure from fathers has been increasing. Last month two separate verdicts by the Constitutional Court ran counter the set tradition and are seen as trying to set a precedent. Constitutional court judge Kateřina Šimáčková had this to say:

“The message we are striving to deliver –which I would stress is also a position upheld by the Court of Human Rights in Strasbourg - is that joint custody is in the best interests of the child. It is the best possible option for a child’s wellbeing and development on condition that both parents are good parents. We see joint custody as a basic arrangement which should always be given priority unless there are significant factors which would run against such a decision – for instance that one parent is unwilling or unable to provide such care. The Constitutional Court has emphasized this position and I hope it will have a positive influence in cultivating the whole Czech judiciary. “

The significance of these verdicts sparked heated debate between the opponents and proponents of joint custody. Lenka Pavlová head of the European Institute for Reconciliation, Mediation and Arbitration, who has worked in the area of child rights for years, says she is not happy with this attempt to set a new trend.

Photo: European Commission

“I really do perceive this as pressure, pressure form the Constitutional Court on lower instance courts for them to accept the principle that joint custody is the basic model and for it to be given priority whenever possible. It is a dangerous course to set –especially if you are going g to do it by law –because the impact it could have on families and in particular on children could be very destructive. Imagine that you are a child with two homes -260 kilometers apart – constantly being shunted to and fro and expected to deal with it and take it in your stride –and even to be happy with the arrangement. Of course children need both role models, but what they do not need is to be forced to grow up in what is often two very confrontational environments, far apart. “

While some judges are cautiously digesting the Constitutional Court’s message, others such as Judge Jaromír Jirsa have no problem with the idea .

“You know given the present modes of travel, I really do not think that a distance of 260 kilometers is a problem that could not be easily overcome. Of course, once a child starts primary school there could be a technical problem with that, but I think it could be resolved if the parent s and teachers want to resolve it. I know a case of joint custody which works between two states, and here in the Czech Republic I know a family where the father lives partly in Prague and partly in Kopřivnice and the mum in based in Olomouc and there is no problem whatsoever –even though the boy is now in primary school. “

Statistical data suggest that the practice of joint custody is more widespread elsewhere in Europe. In Norway it is practically the norm with 94 percent of custody battles ending in joint custody verdicts, in Britain it is 20 percent and in Belgium 18 percent.

Although child psychologists emphasize the need for children to have both role models, they are extremely cautious about the joint-custody trend especially in cases where one parent may be against it. I asked family and child therapist Petra Winnette how she perceives the problem.

Photo: Vedrana Bosnjak / freeimages

“Recently I have been hearing more and more about decisions pertaining to joint custody and I have been seeing families that have such an arrangement, so it is becoming more popular here in the Czech Republic and recently I heard the news that it can be ordered by a court even if one of the parents does not agree. So definitely, developments are going in this direction - in terms of protecting the rights of both parents to equally share the responsibility of caring for the child. Having said that, I would like to emphasize that it seems that all these decisions and procedures are made in favour of the parents –if you look at the child and consider child development issues we see a very different picture. It is common knowledge that a child needs to have a stable environment, a safe home, needs to have his or her needs met by those closest to him. The neurological development of a child’s brain requires a lot of stability and predictability and joint custody does not really provide that. So we are seeing kids who are having to cope with a situation which is not appropriate for them in terms of their development.”

So what are the consequences that you see in your practice?

“The consequence is that the child does not have a sense of home, does not have the sense of this one place in the world which is familiar, which is always there and where there are people the child can rely on. This is split into two places which usually operate in a very different regime and the child does not have the simplicity and stability essential for their good development. Development in childhood goes very quickly and when the child lacks the safe and secure conditions for that, then that child develops psychological problems. Very often it’s a deficit of one’s place in the world and a deficit of safe relationships in the world.”

So what is your advice in this case? Because obviously children need both role models…

“If it happens that the parents have to split up or divorce and start living two independent lives they should sit down together maybe with someone who would help them understand what a child needs – and that is stability, simplicity and the need to rely on someone. And they should put together a framework arrangement that works for the kid. I work with families that operate on the system where the child has one home –with custody usually on the side of the mother- but they have a nice agreement that on Friday afternoon the father will pick up the child from school and they will spend the whole weekend together; so the child knows that it is not home but they spend a nice time together with the father and have a good time with the mother and when the parents are in agreement, when they do not fight and speak nicely of one another –it works. And the child can have a feeling of safety and order in his or her head – a feeling that OK, my parents are not together anymore but I have a good time with mother and a good time with father. It does not mean that if the time is divided equally –a week there, a week here – that it is automatically going to be good. It is of far greater importance for parents to agree on how they are going to do it so that the child does not have to be frightened and anxious about who is going to do what and when and how.”

Photo: Ned Horton, Horton Web Design, freeimages

Do you think that there is a certain trend set in this country according to which they are used to deciding or do they make an effort to decide on a case-by-case basis?

“Well, it is very hard to say because each country develops a certain culture and common understanding of things and the common understanding here is that the kids stay with the mother. And frankly I am not sure that the courts – anywhere in the world – have the time and expertise to assess who would be the better parent for the kid and if that parent has the resources for it. I do not think this issue has a simple solution.”

The Constitutional Court said that on both occasions it had ruled in the best interests of the child and there has been a lot of talk about this setting a new trend. Do you feel that this trend may in the end put a big burden on the children?

Is that what you are saying?

“What I am saying is that it depends on the child’s age.”

So from what age would you say that joint custody would be a good idea or doable?

“I cannot, as a professional, give you an age that works in general. Each case has to be carefully assessed. But I can phrase it like this: the older the child is, the easier it is for them to have two homes. I think it is common sense that if the child is 14 or 16 it is definitely much easier for them to deal with this than for a child of four. So the older the kid, the bigger their capacity to cope with such a situation.”

So it is really best for the parents to try and reach agreement rather than leaving it to a court…

“Of course, every professional in this field would confirm that – I am positive about that. The best option is if the parents can sit down together and find a solution to the problem. But in so many cases this is not possible and it is left to the court to reach a decision and very often it doesn’t work anyway. The court orders joint custody and they still have fights and complain about each other. You get situations when one side says “ when he’s here he always does his homework and he is good at school, but when he is with the other family he has problems at school and they don’t make him brush his teeth” and things like that. If that kind of thing goes on then of course it is not going to be good for the kid.”