Disputes Regarding Parental Responsibility – The Court's Assessments According to the Children Act

Parents initially have a great deal of freedom to make agreements regarding parental responsibility. They can freely agree on who will have parental responsibility and are also free to change both agreements and decisions if they wish and agree on this, cf. the Children Act § 63 first paragraph. When the parents cannot agree on who should have parental responsibility, or do not agree to change an existing agreement, either of them can bring the matter to court, cf. the Children Act § 56, cf. § 63 second paragraph.

The Best Interests of the Child as the Overarching Principle

A decision about who shall have parental responsibility should, according to the Children Act § 48, primarily be based on what is best for the child. This is the fundamental principle that the courts must always adhere to in such cases. The court can determine joint parental responsibility or that one of the parents will have the responsibility alone.

Joint Parental Responsibility or Sole Responsibility

The courts can establish joint parental responsibility even if one of the parents objects to the other having a share in it. This was first established in the Supreme Court's decision in Rt. 1994 p. 992, where the result was joint parental responsibility against the father's wishes. However, if one of the parents explicitly does not want to participate in parental responsibility, it can hardly be established as joint parental responsibility.

Distribution of Parental Responsibility

It must be assumed that the content of parental responsibility cannot be distributed or limited by the courts. This was clarified by the Supreme Court in Rt. 2000 p. 185, where a majority of 3-2 determined that it was not permissible to make restrictions on the content of parental responsibility. The case involved a former cohabiting couple where the Court of Appeal had determined joint parental responsibility, but with the restriction that the father could not oppose the mother's move to Germany with the children. The Supreme Court's majority concluded that such a restriction was not permissible.

However, with an amendment from September 4, 2015, the competence of the courts was expanded, allowing the courts to now address issues of relocation with the child abroad. According to the Children Act § 56 third sentence, a parent with parental responsibility, or a parent who simultaneously claims a share in parental responsibility, can file a lawsuit concerning relocation with the child abroad. This means that the court can decide that a parent may move abroad with the child, without depriving the other parent of parental responsibility.

Assessment Standard for Joint Parental Responsibility

In the preparatory work to the Children Act, strong guidelines are provided for the courts' assessment. It is emphasized that if there are no circumstances affecting the person who wishes to share parental responsibility that make them unsuitable to exercise it, the request for joint parental responsibility should normally be granted. This especially applies where the parties have lived together, and the one seeking parental responsibility has participated in the care and has a close relationship with the child.

The parliamentary committee further reinforced this view by stressing that it is not reasonable for one parent to have sole parental responsibility simply because they wish the other parent not to have it.

Different Starting Points at Relationship Breakdown and When Parents Have Never Lived Together

Through the practice of the Supreme Court, different assessment standards are established depending on the parents' previous relationship situation:

1. In the Event of a Relationship Breakdown: In Rt. 2003 p. 35, the Supreme Court stated that in the event of a relationship breakdown, the rule is joint parental responsibility unless special reasons suggest one parent should have sole parental responsibility. A mother or father will not get parental responsibility alone just because they oppose joint parental responsibility.

2. When Parents Have Never Lived Together: In Rt. 2011 p. 1572, the Supreme Court clarified that when parents have never lived together, or have not lived together during the child's life, an overall assessment of what is in the best interest of the child is made without starting from a rule of joint parental responsibility. This was also taken as a basis in Rt. 2010 p. 216.

Factors in the Courts' Assessment

In the specific assessment, the courts consider several factors, including:

1. If there is a high level of conflict between the parents making cooperation difficult

2. The child's particular vulnerability or needs

3. The parents' ability to cooperate for the child's best interests

4. The degree of contact and connection between the child and the one claiming parental responsibility

5. The extent of visitation and whether this provides a basis for meaningful exercise of parental responsibility

Parental Responsibility After Death

In disputes over parental responsibility after death, the Children Act § 64 applies. In such cases, the court should emphasize whether the surviving parent wishes to have parental responsibility. Furthermore, the wishes of the deceased should be considered, especially if they are written.

In Rt. 2011 p. 1439, the Supreme Court stated that biological connection should be emphasized, but this is only one of several factors in the concrete overall assessment of the child's best interests. If there is doubt about which solution is best for the child, the surviving parent should receive parental responsibility. However, the consideration of biological connection must yield if other circumstances collectively suggest that the child would be better off if others took over parental responsibility.

Conclusion

The courts' handling of disputes over parental responsibility is grounded in the principle of the best interests of the child. The assessment is complex and based on the specific circumstances of each case. Depending on whether the parents have previously lived together or not, the courts apply different approaches, but always with the child's interests and needs as the central focus of the assessment.