HW Legal
What if the parents, or one of them, fail to comply with a judgment regulating the circumstances of a minor child, namely child custody?
The child’s parents have divorced or separated and have a court-determined child custody arrangement. However, they cease to comply with this arrangement, either by mutual agreement or because one parent breaches it unilaterally. What are the legal consequences?
Court judgment regulating the circumstances of the child
When does the court actually decide on the regulation of the circumstances of a minor child?
If the parents of a minor child wish to divorce, the court will always first, before the divorce, decide how each parent will care for the child. Without this, the marriage cannot be dissolved. If the parents have agreed on all matters, the court may approve their agreement; however, it must correspond to the interests of the minor. In the case of unmarried parents, the court will decide on the regulation of the circumstances of their common child if the parents do not agree on this.
What does the court decide in the judgment?
In the judgment, the court regulates the circumstances of the child. This means that it:
decides on entrusting the child into the care of one of the parents, into alternating custody of the parents, or into joint custody of the parents; the child may also be entrusted to a person other than the parents if necessary, for example a grandparent;
if the child is entrusted into the care of one parent, it may decide on contact of the other parent with the child, i.e. regular personal contact between the other, “non-resident”, parent and the child;
decides on child maintenance; please note that the obligation to pay child maintenance is often imposed on both parents in the case of alternating custody, as these are claims of the child, not of the parents. If the child is in the care of one parent, child maintenance is paid only by the other parent, usually to the hands of the resident parent.
What if one of the parents breaches the child custody obligations imposed by the judgment?
One parent refuses to hand over the child to the other parent
If one of the parents refuses to hand over the child to the other parent within the framework of alternating custody or contact with the child, the other parent may apply for judicial enforcement of the decision. The enforcement of the decision itself is preceded by a court notice calling for voluntary fulfilment of the obligation imposed by the judgment.
If the parent fails to comply with the notice, the court will order enforcement of the decision by imposing a fine on the parent who does not voluntarily comply with the court decision. The amount of each individual fine may be up to CZK 50,000, and it may also be imposed repeatedly if expedient.
If neither the notice nor the fines compel the parent to hand over the child, the court may, exceptionally, order enforcement of the decision by removal of the child. Removal of the child is usually carried out by court enforcement officers; an employee of the Authority for Social and Legal Protection of Children may be present, and possibly also a member of the Police of the Czech Republic, municipal police, or judicial guard.
In extreme cases, if a parent persistently refuses to hand over the child to the other parent, they may be found guilty of the criminal offence of obstructing the execution of an official decision under Section 337(4) of the Criminal Code, for which a sentence of imprisonment of up to one year may be imposed.
One parent refuses to pay child maintenance
If a parent does not pay child maintenance to the child, although the judgment requires them to do so, the other parent may, on behalf of the child, enforce payment of outstanding child maintenance retroactively by way of enforcement proceedings.
If the obliged parent does not pay child maintenance, it is also possible to enforce current child maintenance, payable in the future, by way of enforcement proceedings, up to five times the total annual amount of maintenance in advance. The enforcement officer then pays the child maintenance to the child, to the hands of the resident parent, gradually as the individual monthly instalments become due.
If the obliged parent fails to pay child maintenance for more than four months, they commit the criminal offence of neglecting compulsory maintenance under Section 196 of the Criminal Code. In addition to a sentence of imprisonment, the court may impose on the offender a prohibition on driving motor vehicles. However, the criminal liability for the act ceases if the obliged parent pays the outstanding maintenance before the court of first instance begins to pronounce the judgment.
What if both parents breach the court judgment?
It happens that, after the court decision, the parents agree differently, irrespective of whether the court regulated the circumstances of the child by judgment or approved the parents’ agreement. Most often, the parents adapt the handover of the child to the current time needs of themselves or the child. Or they agree differently on child maintenance, temporarily or permanently, for example due to the higher cost of the child’s hobbies.
We definitely do not recommend long-term non-compliance with a court decision. The reason is obvious: as soon as this different arrangement between the parents ceases to function, one of the parents may start invoking the judgment.
Example: Before the divorce, the child is entrusted into the mother’s care. The father is entitled to have contact with the child every other weekend and is obliged to pay child maintenance of CZK 6,000 per month. However, the parents agree between themselves that they will care for the child alternately — they hand over the child every week. At the same time, they agree that the father will stop paying child maintenance. Later, however, the parents fall out, and the mother demands that the father pay the outstanding child maintenance for the period during which he did not pay it.
In such a case, the court would find in favour of the mother and impose on the father the obligation to pay the outstanding child maintenance. The court had determined the maintenance that the father was required to pay, and which he in fact did not pay. It may be assumed, however, that the court would, if it were proven in the proceedings that the parents had for some time exercised alternating custody of the child, adequately reduce the father’s maintenance. At the same time, the court would probably also impose on the mother an obligation to pay outstanding child maintenance; the mother was supposed to have the child in her exclusive care, and within that framework mostly provide the child’s maintenance herself, which she did not do.
How should you proceed if the current child custody arrangement under the court decision does not suit you or the child?
The ideal solution is to immediately file a petition with the court for a change in the regulation of the circumstances of the child. Typically, this is a petition for an increase or decrease in child maintenance, a petition for a change in child custody, a petition for the regulation of contact with the child, or a combination of the above. You should then await the court’s decision.
If it is not possible to wait for the court’s decision, and if you agree with the other parent to deviate from the judgment, we recommend at least informing the Authority for Social and Legal Protection of Children. A petition to the court for a change in the child’s circumstances should be filed in any event.