Were your parental custody rights restricted lawfully?

The restriction of parental custody must be allowed by law. The Family Code states the court may restrict one or both parents’ exercising individual rights of parental custody if the child is at risk.

If the suspension of custody is not allowed by law, your right to family life has been violated. There is then no need to examine the other questions.

The restriction of custody has to be aimed at the protection of a legitimate interest. 

The only legitimate interest for its’ restriction is the protection of the child’s best interest.

example If a parent is abusive, custody rights may be restricted to ensure the protection of the child’s health and his/her interest in developing in a safe environment.

If the restriction of custody does not have a legitimate aim, it is not lawful and your right to family life may have been violated. There is no need to examine the necessity and the proportionality of the restriction.

The restriction of parental custody over a child must be necessary and suitable for the protection of other legitimate interests, usually the child’s interests. 

The following questions should be asked to evaluate its necessity:

a) Is there a serious threat to the child’s life, health or development?

Firstly, there must be sufficient and concrete evidence for such threats, such as a medical statement or the opinion of the child him/herself.

Secondly, it should be evaluated whether:

• these threats are caused by the parent in question
• the child would suffer from violence from the parent if he/she were to stay with the parent

example A serious threat from a parent that would warrant immediate removal of the child from the parent’s presence would be where there are strong suspicions of sexual abuse by that parent.

• the child would suffer from the effects of insufficient care, educational deficiencies and lack of emotional support from the parent if he/she was to remain with the parent

example This requirement would be met if the parent suffered from alcohol addiction and did not provide the necessary care and support for the child.

• there are other specific reasons why the parent is incapable of taking care of a child and these reasons are independent of the parent’s behaviour 

example The parent suffers from a mental or physical disease which makes it impossible to take sufficient care for a child.

• threats could be overcome by financial and social assistance and effective counselling by competent authorities, so that the child could stay with the parent.

example The parent’s poverty and/or lack of adequate housing is an issue which may be solved by providing support from competent authorities, and as such, is not a sufficient and lawful reason for the suspension of a parent’s custody rights.

important The mere fact that a child could be placed in a more beneficial environment for his/her upbringing is not a sufficient reason for the suspension of a parent’s custody rights.

b) Are there other alternative and less restrictive methods available to achieve the legitimate aim?

• Was it possible to provide the necessary financial and social assistance for the child’s life, health and development?
• Was it possible to manage that the other parent, a relative or a close family friend could help to take care of the child?

c) Was the order to restrict parental custody issued urgently?

An urgently issued order to restrict parental custody (emergency order) is an especially severe restriction of the parent’s right to family life. However, such a measure is lawful if there are sufficient reasons for such action.

example The urgency of the particular situation, such as the endangerment of a child’s life and health, requires an immediate reaction from authorities.

Both competing interests – your right to family life and the legitimate interests of your child - have to be balanced against each other, and the state institutions must find a fair balance. There have to be sufficient arguments why the interests of others outweighed your rights in the particular case.

Restriction of parental custody is serious interference, as it splits up a child-parent relationship for a certain time. There should be sufficiently sound and weighty considerations in favour of the best interests of the child. The following aspects should be evaluated within the balancing process:

a) the child’s best interests

It is in the child’s best interests that his/her ties with his/her family members are maintained except in cases where it would harm the child’s health and development. To identify the child’s best interests in each particular case, the authorities must take into account the child’s age, maturity and wishes. Read more about the principle of a child’s best interests.

example A child’s wish to stay with parents will not be decisive where he/she would be likely to suffer from domestic violence from the parent in question. In such a case, it should be objectively assessed, whether it is in the child’s best interests to be away from that parent to ensure the child’s development in a safe and secure environment.

The child’s age, mental and physical state play a particular role in the decision-making procedure. The younger the child, the stronger the possibility that after restriction of parental custody, when the child is placed in the care of the other parent, legal guardian or foster parents, that he/she will establish a close relationship with them. It may then be in the child’s best interests not to interrupt the new relations. In such a case, it may make it difficult to re-establish the restricted custody and relationship with the child. In other words, the restriction of custody over a younger child may lead to alienation from the parent in question with much more limited possibilities of reuniting and renewing the parent-child relationship.

example The restriction of parental custody over a new-born baby is an extremely harsh measure and must be taken only after very careful consideration. 

b) What are the parent’s characteristics and conduct towards the child and the other parent?

• Does the parent suffer from a disease or an addiction which makes it impossible or excessively difficult to sufficiently care for a child?
• Has the parent neglected the child, been abusive and/or violent towards the child and other family members?
• If the parent has had these problems, was he/she motivated to accept treatment and/or assistance from authorities before the restriction of parental custody?
• Has the parent been motivated and cooperative towards the authorities in order to find the best solution for the situation? 
• Has the parent wilfully prevented the other parent from access to the child, even though access rights were not restricted by the authority or the court?

c) Has the parent been treated differently on the basis of certain aspects related to his/her personality? 

example A parent’s custody rights have been restricted on the basis of his objective characteristics or beliefs such as his/her sexual orientation, religion or age.

If the mere fact of a parent’s personality, for example, belonging to a certain religion, is the decisive factor for restriction of custody, it may violate the prohibition of unequal treatment. However, there will be no violation if the authority has carefully examined all evidence, and concluded that the influence of certain personal aspects may threaten the child’s best interests.

d) Is the parent allowed to contact the child and exercise his/her access rights after the restriction of parental custody?

The opportunity to contact and meet the child while parental custody is restricted lessens the harsh effect on the parent’s right to family life, potentially caused by the restriction of basic custody rights.

Read more about the lawfulness of restrictions of parental access rights.

e) Was the child, who was also removed from the parent, put into care by the other parent, a relative or a close family friend after the restriction of parental custody? 

Such a measure is a milder restriction than placing the child into the care of an unrelated person or a specialized care institution. For example, in such a situation the right to contact and visit a child may generally be easier to negotiate and exercise.

f) Was the decision-making procedure fair?

Was the parent involved in the decision-making procedure?

The involvement of the parent ensures that the decision is not one-sided and arbitrary. The parent has a right:

• to be heard and to present arguments against the restriction of parental custody
• to be fully informed about the situation and have access to all the relevant evidence which the authorities have collected.

The situation and its consequences should be explained to a parent who suffers from mental disease or intellectual disabilities, in a manner that he/she understands. This may also include providing legal assistance, and if necessary, advice and guidance in seeking it.

If the parent has no opportunity to be involved and heard in the decision-making procedure, it may lead to a violation of the parent’s right to family life. However, the participation of the parent in the decision-making process is not needed in exceptional situations, such as: 

• the parent cannot be found
• the parent’s physical or mental condition is such that he/she cannot understand the situation
• in other circumstances where it would be impossible or excessively difficult. 

Have the authorities examined the entire family situation thoroughly?

This includes an examination of all factors and evidence of a factual, emotional, psychological, material and medical nature, and a balanced and reasonable assessment of both the child’s and the parent’s interests.

g) What was the length of the decision-making process?

Effective protection of family life requires that future relations between a parent and a child should be determined as soon as possible. Proceedings should not be unnecessarily delayed due to the authority’s fault.

Read more about how to complain in a situation where your parental custody has been restricted.