You should examine the questions below to evaluate whether your custody rights have been withdrawn lawfully and whether your right to family life has been sufficiently respected.
If the answer to any of these questions is negative in your situation, your right to family life may have been violated. In such a case, you have the right to complain. Read more about how to complain.
Read more about your access rights if they have been restricted due to the withdrawal of your parental custody.
Read more about the restricton of parental custody rights, if your custody rights have been restricted, not withdrawn.
The withdrawal of parental custody must be allowed by law. The Family Code describes situations where withdrawal is allowed: Custody over a child may be withdrawn by a court only if the child is at risk and the circumstances of the case do not indicate that the parents or a parent could or would re-take care of his or her upbringing and care, especially if they have seriously violated their obligations or abused their parental custody rights, or if they have abandoned the child or have by their conduct clearly shown that they will not care for the child.
If the withdrawal of custody is not allowed by law, your right to family life has been violated. There is no need to examine the other questions.
The withdrawal of custody has to be aimed at the protection of a legitimate interest.
The only legitimate interest for withdrawal is the protection of the child’s best interest.
example If a parent is abusive or endangers the child’s health, parental custody may be withdrawn to ensure the protection of the child’s health and their interest in developing in a safe environment.
If the withdrawal of custody does not have a legitimate aim, it is not lawful and your right to family life may have been be violated. In such a case, there is no need to examine the necessity for and the proportionality of the withdrawal.
The withdrawal of parental custody over a child must be necessary and suitable for the protection of legitimate interests, the child’s interests.
The following questions should be asked to evaluate its necessity:
a) Is the child’s life, health or development seriously threatened?
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 was to remain in that parent’s custody
example A serious threats 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 parental custody was not withdrawn.
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 the 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 of the child.
- the 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 withdrawal 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 withdrawal 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?
important If parental custody was withdrawn at the same time as initiating an adoption procedure, such a measure is considered to be particularly severe. This is so because an adoption procedure will end with a final and irreversible removal of the child from the parent’s custody.
c) Was the order to withdraw parental custody issued urgently?
An urgently issued order to withdraw parental custody (emergency order) is a particularly severe restriction of the parent’s right to family life. However, such a measure is lawful, if there are sufficient reasons for it.
example The urgency of the particular situation, such as the severe endangerment of a child’s life and health, would require an immediate reaction from authorities and would justify such an emergency order.
Both competing interests – your right to family life and the legitimate interests of your child to receive permanent and stable care and upbringing - 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.
Withdrawal of parental custody is very serious interference, as it splits up a child-parent relationship. There should be sufficiently sound and weighty considerations in 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 ties with members of his/her family 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 the child’s best interests.
example A child’s wish to stay with the parent 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 the withdrawal 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 and 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 withdrawn custody and relationship with the child. In other words, the withdrawal 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 withdrawal 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, or been abusive and/or violent towards the child and other family members?
- If the parent has the aforementioned problems, was he/she motivated to accept treatment and/or assistance from authorities before the withdrawal of parental custody?
- Has the parent been motivated and cooperative towards the authorities in finding the best solution for the situation before the withdrawal of parental custody?
- 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 withdrawn on the basis of his/her objective characteristics or beliefs such as their sexual orientation, religion or age.
If the mere fact of the parent’s personality, for example, their belonging to a certain religion, is the decisive factor for the withdrawal of parental custody, it may violate the prohibition on unequal treatment. However, there will be no violation if the authority has carefully examined all the evidence, and thus 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 withdrawal of parental custody?
The opportunity to contact and meet the child while parental custody is withdrawn lessens the harsh effect on the parent’s right to family life caused by the withdrawal of custody rights.
Read more about the lawfulness of restrictions of parental access rights.
e) Was the child taken into care by the other parent, a relative or a close family friend due to the withdrawal 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 be generally 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 present arguments against the withdrawal 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:
- where 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?
A thorough examination includes the examination of all factors and evidence of a factual, emotional, psychological, material and medical nature, and a balanced and reasonable assessment of the child’s and the parent’s interests.