Where parents can’t agree on child access arrangements, the court will help

Every parent has the right and duty to access their child and a parent raising a child alone cannot prohibit the other parent’s access to the child, even if the other parent does not pay support. When disagreements arise about access, there are several solutions, but the process can be very time-consuming and complicated.

The new Family Law Act introduced the concept of parental legal custody into our legal system. Parental legal custody means that a parent has the duty and right to take care of their minor child. A parent’s right to access their child is a part of parental legal custody. The need to establish parental legal custody, including the right of access, is a growing concern. A court can deprive a parent of parental legal custody, about which you can read more in our advice section.

Every parent has the right to access their child

The law lays down equal rights and duties of parents towards their children, which also means that both parents have the right and the duty to access their children, even if the parents are separated. It is a common misconception that the maintenance duty and access duty are mutually dependent. This is not the case. Every parent has the right (and, importantly, the duty) to access their child and, for example, the fact of not paying support cannot be decisive in prohibiting access. The Supreme Court has stressed in several judgments that a parent living with their child must refrain from any action that is harmful to the relationship between the child and the other parent or that hinders raising the child.

It appears to be undeniable that both the mother and the father play an important role in a child’s overall social development. When the child is too young to make decisions about their life, one of the parents must not take the liberty to decide whether the child may have access to the other parent. A child has the right to both parents as well as the right to have close relationships with the relatives of both parents. Preventing this is very damaging to the child and will reduce the child’s ability to make their own choices about their future relations.

The courts have been dealing with a large number of disputes concerning child access arrangements. Studies have found that parents often take advantage of children to take revenge on their former partners. A parent may find various ways to prevent the other parent from accessing children, for example, excuses as to why a meeting is not possible at a particular time, lies about children’s diseases or children’s willingness to meet the other parent, etc. At this point, we should be reminded of a parent’s duty to facilitate contact with the separated parent.

Naturally, a child is emotionally closer to the parent who takes care of them every day. This is why the attitudes and motivations of this parent play a huge role for the child. If a child feels supported by a parent, they will feel more confident and secure in their relationship with the other parent, which is positive for the child’s mental health.

What can be done if there are problems with access, i.e. a separated parent is prevented from accessing their child?

If there are problems accessing the child, that is, if one parent unreasonably prevents the other parent from accessing the child (e.g. the mother does not allow the father to meet the child), the local social worker should be contacted first to resolve the dispute. The social worker will help the parties to resolve the dispute amicably and, if necessary, agree on the access arrangements in the presence of a child protection official.

It is also possible to go to court. It should be noted that the court is not bound by what either parent says but has a great deal of discretion in such cases. The court can ask for opinions from all the institutions involved with the child, order the parties to consult a family mediator, etc.

Under the Code of Civil Procedure, the court also has a duty to steer the parties to reach a compromise. A recent Supreme Court judgment further underlined the role of the court in steering disputing parents to compromise on child access arrangements. In that particular case, the courts of lower instances had made a decision, thoroughly considering the arguments put forward by both parties, but the Supreme Court annulled the decisions, finding that the court of lower instance failed to steer the parties to resolve the disagreements in the best interests of the child and to agree on the access arrangements, including pointing out the possibility of using the help of a family counsellor or steering the parents to participate in conciliation proceedings to settle the matter.

In its judgment, the Supreme Court gave specific instructions to courts of lower instances on how to handle access arrangement proceedings. When regulating parent-child access, a court must be guided by the principle of inquiry and must make every effort to persuade the parents to cooperate in the best interests of the child and agree on the access arrangements to avoid subsequent problems in complying with the arrangements imposed by a court decision. To this end, the court must discuss with the parents all aspects of access to the child on which the parents disagree, steer the parents to make concessions in the interests of the child and explain how the court will regulate access if the parents remain in irreconcilable disagreement.

In the Supreme Court’s opinion, in disputes concerning children, it is very important to offer parents the opportunity to consult an expert to resolve child issues in the best interests of the child and, in certain cases, to order the conduct of out-of-court conciliation proceedings to overcome disagreements.

Disputes about access arrangements can thus be extremely long and exhausting. Besides, a large share of such disputes end with one party giving up, finding that, after a great deal of time and money spent, the dispute is no longer worth continuing. A very negative thing about this course of events is that if one of the parents is exhausted of the fight against obstacles, they will accept the inevitable and cut their contact with the child entirely. There are, of course, examples to the contrary.

At the same time, everything depends on the determination of the parent who seeks the right of access to the child. As an example, a father was seeking child access arrangements in a court. The court proceedings were actually completed quite quickly, within about half a year. Next, the child’s mother did not comply with the arrangements ordered by the court and the father had to take legal action again to start conciliation proceedings for breach of the access arrangements. Since the mother never appeared in court despite warnings of a fine, the court’s hands were tied and the conciliation proceedings failed. As access to the child was still hindered, the father had no choice but to request the court for a partial assignment of decision-making rights (under clause 563 (7) 1) of the Code of Civil Procedure, if conciliation proceedings are deemed to have failed, the court may determine what changes should be made to the parental rights with regard to the child).

Therefore, if the parents have been unable to reach a consensus on child access arrangements (which obviously implies that the right and duty of neither of the parents to access the child are taken into account), they cannot expect a simple solution from the court. Court proceedings for determining child access arrangements can take a long time and include periods when the parents are steered to conciliation proceedings to resolve their disagreements. Therefore, solutions should always be found in the first place and access arrangements agreed on out of court. This is where lawyers can help with both the legal aspects and the actual negotiations. Lawyers can explain the legal situation and help find solutions as well as formalise the agreements reached to guide future steps.

Published in Postimees Opinion Portal.