The child's permanent residence – rules and assessments according to the Children Act

When parents do not live together, the question of where the child will have its permanent residence becomes an important issue. The Children's Act provides rules for how this should be determined, and case law has contributed to elucidating which considerations should be emphasized. This article reviews the regulations and practices related to the permanent residence of children under Norwegian law.

Parental Responsibility and Permanent Residence

Parental responsibility and permanent residence are essentially two separate issues. Parental responsibility concerns who should have the duty of care and the right and duty to make decisions over the child, while permanent residence concerns where the child should actually have its home. However, these issues are closely connected, partly because where the child will live permanently is one of the decisions that those with parental responsibility can make.

If one of the parents has sole parental responsibility, they also have the right and obligation to have the child living permanently with them. In cases where the parents do not live together but share parental responsibility, a particular decision must be made regarding where the child will live. The person with whom the child lives permanently must also have or share in parental responsibility.

Freedom of Contract and the Court's Alternatives

Parents who do not live together have, according to the Children's Act, section 36, first paragraph, full freedom of contract regarding whether the child should live permanently with both or with one of them. The first option is often called joint residence, meaning that the child must live alternately with both parents based on agreed intervals.

If the parents cannot agree, the matter can be brought before the courts. According to the Children's Act, section 36, second paragraph, first sentence, the courts must then, in principle, choose residence with one of the parents. However, the courts have limited access to impose joint residence if there are "special reasons." This is intended to be an exception rule, as both the wording of the law and preparatory work indicate.

For the courts to impose joint residence, several conditions must be present:

• The parents must live in close geographical proximity

• The child must be able to maintain contact with friends and leisure activities from both homes

• The parents must be able to cooperate well about the child and not have a high level of conflict

• The child must be comfortable with such an arrangement

In the preparatory work, it is emphasized that the court must be convinced that joint residence will be in the best interest of the child before making a decision about this, and that joint residence is not considered applicable for children under seven years of age.

The Child's Best Interest as an Overarching Principle

The Constitution, section 104, second paragraph, and the Convention on the Rights of the Child, article 3, number 1, establish that the child's best interest should be a fundamental consideration in all actions concerning children. It follows from the Children's Act, section 48, first paragraph, that decisions on parental responsibility, where the child will live permanently, and contact should primarily align with what is best for the child.

This means that other considerations can also be relevant, but only subsidiarily. The Supreme Court has interpreted the law such that only when no solution stands out as the best for the child can other considerations be included in the decision.

Key Arguments in Case Law

Through case law, certain arguments have crystallized, having a significant influence on the overall assessment of where a child should live permanently:

Risk of Environmental Change (Status Quo Principle)

The consideration of avoiding the risk that an environmental change may entail for children has long been the most central argument in case law. This is also called the status quo principle, as it involves maintaining the established arrangement.

When this consideration becomes decisive, the court is based on a presumption that it is best for the child to remain in their existing care situation, maintain connections and stability with the caregiver they actually live with, and/or maintain connections with the existing residential environment, friends, and school.

The Supreme Court has emphasized in several judgments that a certain likelihood is required that a relocation will provide benefits for the children before changing a well-functioning arrangement.

Best Overall Parental Contact

Another important consideration is that the child should have the best possible contact with both parents. Both the Convention on the Rights of the Child and the Children's Act are based on the value for the child of contact with both parents.

This assessment comes particularly into focus in cases where the person the child lives with does not cooperate regarding visitation rights. The question then becomes whether the child should have to move, and thus be exposed to the risk that an environmental change can entail, to achieve better overall parental contact.

In case law, we see that the consideration of best overall parental contact is strong, even though other considerations are also emphasized and sometimes become decisive. Parents with this argument on their side often succeed.

Parents' Personal Qualifications and Characteristics

The parents' personal characteristics are important in an assessment of permanent residence, as the issue is where it is best for the child to live. It is difficult to make general statements about which characteristics are preferred, but legally, it is a question of who is best able to fulfill the rights and obligations that parental responsibility entails.

In practice, it is often the ability to provide care, warmth, and love that is central. In appellate court practice, it is often emphasized who is best able to protect the child from adult conflict.

Stable, Secure Upbringing Conditions

This consideration can relate to the residential environment, whether the parents are employed, whether the family situation appears stable, or whether there is frequent change of partners, and what developmental opportunities the child is offered with each parent.

The assessment of stability is often made from a long-term perspective. The assumption that the future conditions for the child will become more stable can, after a concrete assessment, also justify a short-term instability associated with a move.

The Child's Wishes

When assessing where it would be best for a child to live, it is obvious that the child's opinion on the matter must also be significant. The Supreme Court has interpreted it so that the child's opinion forms part of the "best interest of the child" assessment.

According to the Children's Act, section 31, a child who has reached the age of seven, and younger children who are able to form their own views, should receive information and an opportunity to express their opinion before decisions are made about personal matters for the child, including parental responsibility, where the child will live permanently, and visitation. When the child turns twelve, significant weight should be given to what the child thinks.

Although the child may have a preference regarding residence, it is not guaranteed that the court's conclusion will always align with it. This is also natural since the child's opinion is only part of what the court will base its conclusion on.

Separation of Siblings

It has long been generally agreed that siblings should not be separated, with the argument that when parents part ways, siblings may have an extra need for the support and stability they can gain from each other.

Even here, absolute truths cannot be operated with, but specific assessments must be made. Considerations that in some cases might suggest separation of siblings include the children's own wishes, a large age difference, that the sibling group does not interact well together, or that the sibling group is large, and each parent does not have the capacity to care for all.

Summary

Decisions about where a child should live permanently should primarily be based on what is best for the child. A concrete overall assessment should be conducted, weighing several considerations against each other. The central aspects emphasized in case law are the risk of environmental change, the importance of best overall parental contact, the parents' personal characteristics, stable upbringing conditions, the child's own wishes, and the principle that siblings should grow up together.

Although parents are encouraged to agree on where the child should live permanently, the Children's Act and case law provide a solid foundation for the cases where the matter must be decided by the courts.