No. 27




Disputes between Parents in Determining Right of Custody and Right of Contact – Who Are the Winners and the Losers?

  • Maarja Lillsaar

    Private Law Analyst, Legal Information Department of the Supreme Court

  • Kristel Siimula-Saar

    Head Specialist, Legal Information Department of the Supreme Court

Parents have equal rights and obligations regarding their children, unless otherwise provided by law. The most important part of the legal relationship between a parent and a child is the custody right of the parent. The parent’s right of custody means that a parent has the obligation and the right to take care of his or her underage child. The right of custody may be granted to a parent or not granted to a parent, and the right of custody may also be granted to a parent only partially. A thorough revision of the ownership of custody rights may turn out to be inevitable first of all in the cases when the parents start to live separately and it becomes necessary to decide to what extent and in what way both parents will participate in the life of their child. It is generally thought that it is usually in the best interests of the child whose parents are living separately to have two parents with custody rights after the breakup of the marriage or the cohabitation relationship of its parents.

The right of contact is closely connected with the right of custody. Each relationship between a parent and a child gives rise to the right of at least both sides to be legally in contact or to communicate. It would be the best for parents and the child both if communication is agreed upon unanimously and if it is arranged flexibly. If the parents cannot reach an agreement, the contact arrangements have to be determined by court. In solving a dispute concerning a child, first of all the interests of the child have to be proceeded from. Unfortunately, in many cases the disagreement between the parents on the right of custody is caused by the conflicts between them, and often children are either consciously or unconsciously involved in solving them. As parents may endanger the interests of their child with their arguments and requests when separating, the court involves other persons besides the parents and the child (representative of the child, child protection official) in the solving of right of custody disputes. It is the task of these other persons to stand for the best interests of the child. Although the process of involvement is regulated by law, several problems that may hinder the ascertaining of the best interests of the child may arise in the activities of all parties. It is important that all parties were able to stand for the interests of the child. Therefore both the judges and the representatives of parents and children have to be trained.

The Code of Civil Procedure provides exceptions from the general procedure in disputes concerning the interests of a child. Thus, in the cases concerning the interests of a child, the court has the right to collect evidence by itself; there are special instruments for securing an application or action, and in family matters the court is not bound by presented circumstances or positions. The courts have been imposed the obligation of hearing a child who is at least 10 years of age (younger children may also be heard). The courts have the possibility to send parents to counselling. The courts have used this possibility, but there are several impediments: there is no national system of counselling, and it is not clear how and in which cases a counsellor can be or has to be used, and who will pay for it.

In the case of conflicted separation of parents, the child as if loses its status of a subject and becomes the object of arguments of the parents. The Family Law Act enables to solve the disputes between parents on case-by-case basis, obliging first of all to observe the welfare of the child. But the reality is something else – if parents argue, they are not able to think of what is good for the child.

Full article in Estonian