Custody questions during Covid: Know your rights in the Czech Republic

The coronavirus hasn’t just complicated travel and family relationships, it has added an additional layer of complexity to already complex custody arrangements. Do you have the right to visit your child during a pandemic? Are you obligated to hand over your child to the non-custodial parent? Can you apply for child support reduction if your income fell during the pandemic?

Mutual cooperation between parents and more respect and understanding can be critical to caring for your children during these difficult times. We’ve spoken to the family law attornies at the Law Office Pajerová Sedláčková ADVOKATKY who addressed some of the most frequently asked questions with regards to basic custody issues as well as custody rights during the coronavirus in the Czech Republic.

Do court orders still apply during the Covid crisis?

Yes. The Czech Republic belongs to the Convention of the Rights of the Child which establishes that the child and its parents have the right to establish and maintain mutual regular contact, even if the child is separated from one of the parents.

That means a parents’ custodial rights are basically the same even after the parents get divorced or separated; even if there is no custody or visitation order, a parent still has the right to access his or her child.

However, the non-custodial parent may only care for their child during their parenting time which is why the custody agreement must be clearly outlined.

Can I travel to see my child during Covid?

Government and other coronavirus-related measures issued in the Czech Republic allow for several exceptions, particularly with respect to the entry of foreigners to the Czech Republic and the movement of people on its territory. The care of children pursuant to a respective court order is one of them.

You have the right to see your child even during the pandemic cannot be denied that right. Meaning that if your live in a “high-risk” country, you still have the right to enter the Czech Republic and see your child.

It’s still important, however, to be mindful of the travel risks associated with the current situation, and of the health risks in particular. Therefore, you should always assess whether your child might be jeopardized or exposed to unnecessary risk if you exercise those rights.

An alternative agreement with the other parent is always welcome in such case and the court order will not be affected by such an agreement in any way; in other words, a temporary modification of parenting time under the parents’ mutual agreement does not prevent the parents from returning to the official visitation schedule as per the court order which is still valid.

If one of the parents refuses to comply with the custody and visitation order (for example wants to prevent another parent from seeing the child) you may file a petition with the court seeking enforcement of the order and the parent preventing the other parent from access could be issued a penalty, even repeatedly, for non-compliance.

What if a child refuses contact?

Covid or not, there often situations arise when a child does not want to see his or her “other” parent. If a child refuses to see his or her non-custodial parent the resolution of the situation depends on whether it is actually the child’s wish or whether the child’s negative attitude as a result of the deliberate negative influence of a third party, usually the custodial parent.

If it is actually the child’s wish, creating positive motivation for the child to visit the other parent is one of the responsibilities of the custodial parent. If the child still does not want to visit the other parent, the court should not order the decision to be enforced, e.g. by imposing a penalty, because no parent should be punished for the exercise of the participating right by the child. The decision of a minor child has been clearly stipulated by the Constitutional Court of the Czech Republic.

What if one of the parents is quarantined?

The right of access is not unbridled and caution should be exercised in cases where the non-custodial parent, custodial parent, or the child is being quarantined.

If you are being quarantined, skipping the scheduled visitation is the best approach since you would be breaching the public duty to be quarantined as you have been ordered to and, even more importantly, you would endanger your child who would then have to be quarantined as well.

Your right of access is not, however, hindered by the ordered quarantine and the other parent should provide for at least remote contact sessions. In justified cases such as this one, it is desirable to conduct visitation via online communication (via Skype, Facebook, FaceTime) or via telephone.

If the parent insists on personal contact, it raises the question of whether they are acting in the best interests of the child. Such conduct might even have negative consequences for that parent if the court were to issue a custody decision again due to changed circumstances.

What sort of information is the custodial parent obliged to provide?

The right to receive information about your child is also a form of indirect contact. It is a form of contact which, although not capable of promoting parent-child relationship per se, is an important part of each such relationship.

In most cases, it is the custodial parent who has the obligation to inform the other parent, however, the other parent who has visitation rights must provide such information to the custodial parent. In cases of shared custody, both parents have this obligation to each other.

Parents must inform each other of all important circumstances with respect to the child and the child’s interests. If one of them fails to do this, the other parent may turn to the Authority in Charge of Social and Legal Protection of Children (OSPOD) or court, or seek enforcement of the court order if there is one.

Can I apply for child support reduction?

Another issue relating to the coronavirus pandemic is the possibility of reducing child support determined by the court. For the obliged parent, it is extremely difficult, verging on impossible. In general, it is only possible when the obliged parent’s circumstances have changed significantly and when the child support is totally disproportionate to their current property circumstances.

The right to increase the child support is anticipated automatically since the child’s needs are growing as the child grows; it means the child’s costs of living are growing along.

If the change of your property circumstances is only transient, we do not recommend applying for reduction of the child support as the court is very likely to find that the conditions for such a reduction have not been met.

But if you lost your job and you do not expect to find a new job in the foreseeable future or if your health condition got impaired significantly and it has a negative impact on your chances in the labor market, you should try to explain your situation to the other parent and try to reach an agreement, e.g. to agree on a temporary reduction, and only if no agreement can be reached, you should file an application to the court.

What if we cannot agree on custody matters during Covid?

It's important that parents do not try to resolve any disputes with one another by removing the child without the other parent's consent. If you are the custodial parent, do not try to resolve any dispute with the other parent concerning visitation or exercise of parental rights by removing the child without the other parent’s consent.

Society is now quite aware of the existence of international child abductions, meaning that they know that wrongful removal of a child to a foreign country is not only against the law, but also against the child’s interests.

It is the same if you remove the child without the other parent’s consent outside the place of its residence within the Czech Republic.

There are of course exceptions where it is an objective necessity that the parent and child move to a distant location, however, in such case, if the parents disagree, the right thing to do is to file a petition to the court to determine the new location as the child’s place of residence; it is up to the court to assess whether it is actually the case of an objective necessity.

If there is no objective reason, you can remove the child without the other parent’s consent within the municipality or the district; the professional public’s prevailing opinion is that it is not abduction and the other parent’s consent is not necessary in such a case.

What should I do if my child is taken abroad without my consent?

Against domestic or international abduction, legal action must be taken immediately; otherwise, the consequences might become irreversible. File an action to return the child in case of international abduction, either directly or in cooperation with the Authority in Charge of International Legal Protection of Children (UMPOD) or, in case of domestic abduction, file a petition for preliminary injunction seeking the child’s return to the original municipality.

The promptness of taking decisions in these matters is of the essence since mere passage of time may cause irreparable damage to the child’s relationship with the parent not living with the child. Sometimes, a wrongful removal may get “legalized”, if, for example, the other parent does not turn to the court in time, or if they do but the court proceedings to determine the child’s residence have been already taking a long time, and so the court adjudicates that it is no longer in the child’s interest to return to the original place of residence since the child has already formed ties in the new place of residence.

This is closely related to the issue of increased costs of visitation if the parents live further from each other; in general, the costs of visitation are borne by the non-custodial parent. In this case, however, in order to spread the burden of costs evenly, you may seek that these costs are proportionately and reasonably passed on to the custodial parent. If one of the parents believes that he can move to the other side of the country just to make visitation for the other parent more difficult, it may blow back on them and, most importantly, on the child. 

Can we return to the original custody visitation regime when things settle down?

The regime settled by the court order needs to be followed even during the Covid period. However as we stated above, the covid situation might require a adaptation and change of regime for health reasons or the need to be quarantined, etc.

It is expected that after all coronavirus-related measures are lifted, visitation and the associated issues will return to the normal regime determined either by court or by the parents’ mutual agreement.