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The principal rules relating to parental authority are grouped together in Articles 371 to 387b of the Civil Code. Article 203(1) of the Civil Code also mentions certain duties incumbent upon parents (accommodation, support, supervision, education and training – this last obligation may continue after the child reaches majority).
Children remain under the authority of their father and mother until their majority (18 years old) or emancipation. Amongst the various aspects of parental authority, a distinction is made between authority over the person of the child, management of the child's assets and certain prerogatives of parental authority. Authority over the person of the child can be subdivided into two parts: firstly, "custody", which consists in "living" with the child (that is, taking care of the child, supervising the child, and taking educational decisions related to the presence of the child with the parent) and, secondly, the right of education, which consists in taking decisions related to the child's support, education and training. With regard to managing the child's assets, there is a distinction between the right to administer the child's assets and the legal usufruct of them. Lastly, special prerogatives can mean the parents' powers relating to the marriage, adoption and emancipation of the child.
Parental authority over the person of the minor is normally exercised jointly by each of the child's parents. Whether the parents live together or not and whether they are married or not, if the child's relationship to each of them is established, they (each) jointly exercise the various prerogatives of parental authority (Articles 373 and 374 of the Civil Code).
If filiation to either the father or the mother is not established or if one of them is dead, absent or unable to convey their wishes, the other exercises this authority alone.
However, in some cases the competent judge can entrust exclusive exercise of parental authority to one parent.
In the absence of agreement by the parents on organising the child's accommodation, on important decisions concerning the health, education, training or leisure time of the child, and on religious or philosophical orientation, or if an agreement seems to be contrary to the child's interests, the judge may entrust exclusive exercise of parental authority to one parent; the other maintains a personal relationship with the child according to specified terms and retains the right to supervise the child's education. If neither the father nor the mother is in a fit state to exercise parental authority, there will be grounds for commencing a guardianship (Article 375 of the Civil Code).
In theory, the parents' separation or divorce has no effect on the rules of parental authority devolution (but, in practice, separation can make the exercise of joint parental authority impossible). The legal principle is for joint exercise of parental authority by each of the child's parents (cf. point 2). However, the judge may decide to entrust the exclusive exercise of parental authority to one of the parents, in accordance with Article 374 of the Civil Code, in the circumstances mentioned in the Article referred to above (cf. point 3).
Parents can, of course, agree on the practical details of exercising parental authority, provided that the child's interests are always respected.
The practical details of the child's accommodation, the place where the child is entered in the population register, and the practical details of the parents' contribution to the child's maintenance, education and training must all be determined.
The parties are not obliged to go before the court and may conclude a private agreement settling the question of parental authority over the child. If they wish to be able to have this decision enforced in case of need, they must submit the agreement to the competent judge, who will review it to see whether it respects the child's interests.
According to the circumstances and the type of separation, the parties must address themselves either to the justice of the peace who regulates urgent and provisional measures concerning provisional separation of spouses or legal cohabitants (Articles 223 and 1479 of the Civil Code), to the juvenile court, in accordance with Article 387a of the Civil Code, which orders any arrangement concerning parental authority over the child, or to the court of first instance and the court dealing with the case within the framework of divorce of the parties.
In the event of divorce due to irremediable breakdown of the marriage (cf. sheet "Divorce - Belgium"), the parties may, at any stage in the proceedings, ask the judge to approve the agreement on provisional measures concerning children. The judge may refuse to approve the agreement if it is contrary to the children's interests. In the absence of agreement or in the event of partial agreement, it is the judge sitting in chambers who settles the question. The parties may also address themselves direct to the judge in chambers. After the divorce, authority over the person of the child and the administration of the child's assets are exercised jointly by the parents or by the party to whom authority has been entrusted by previous decisions, subject to the possibility for the juvenile court to amend any decision concerning parental authority, at the request of the both the father and mother, of just one of them or of the public prosecutor.
In the event of divorce by mutual consent (cf. "Divorce - Belgium"), the parties must indicate in their agreement prior to divorce what measures will be in place with regard to parental authority (exercise of parental authority, right to personal relationships, administration of the child's assets) and the practical details of each parent's contribution to the child's maintenance, education and training, both during the divorce proceedings and afterwards. The public prosecutor gives an opinion and the judge may delete or amend any arrangements contrary to the interests of minor children. The judge grants the divorce and approves the agreement on minor children.
The judge already dealing with the case may, with the agreement of the parties, suggest going to family mediation, or a request to this effect can come from the parties themselves (Article 1734 of the Judicial Code). The mediator attempts to come to a partial or complete agreement. The judge may refuse to approve the agreement only if it runs counter to public policy or if the agreement reached at the end of family mediation is contrary to the children's interests. Any party may also propose resorting to mediation independently of any judicial proceedings (Article 1730 of the Judicial Code). The agreement arrived at by an approved mediator may also be subject to approval under the conditions referred to above.
Lastly, there is nothing to prevent the parties from consulting experts (social workers, psychologists, child psychiatrists) in order to obtain an informed opinion or from asking for an expert to be nominated for the judicial proceedings. As part of the aforementioned proceedings, the public prosecutor may call on social services to obtain information about the children, and the judge will take the children's views into account (Article 931 of the Judicial Code).
The judge must decide on the exercise of parental authority. This will obviously depend on the wishes expressed by the parents and by the child if of an age to decide, on the situation and on the circumstances of the case. If the parents are unable to agree about the child (accommodation, important decisions on health, education, training, leisure activities, religious or philosophical orientation) or if, in the judge's view, their agreement seems contrary to the child's interests, the judge may entrust exclusive exercise of parental authority to one of the parents. The judge may also take decisions on education which could otherwise be taken only with the consent of the parents. The judge sets out the arrangements enabling the parent who does not exercise parental authority to maintain a personal relationship with the child – this relationship may be refused only for very serious reasons.
The parent who does not exercise parental authority retains the right to supervise the child's education. If this parent does not receive useful information in this respect from the other parent or from third parties, he or she may refer the matter to the juvenile court in the interests of the child.
In all cases, the judge determines the practical details of accommodation and the place where the child is primarily entered in the population register.
The judge may also decide on the practical details of the contributions to the child's maintenance, education and training.
The parties may refer specific questions to the judge, such as the allocation of holiday periods as between the parents, the sharing of certain expenses and enrolment in a school. This depends on each particular case.
The fact that one of the parents has been granted sole parental authority does not give him or her carte blanche to take decisions regarding the child. The agreements reached in each particular case must be looked at. In addition (cf. point 7), the other parent retains the right to supervise the child's education. Moving house with the child without informing the other parent may affect the child's accommodation, the right to a personal relationship, etc. In such a case, the party who was not notified or who does not agree may apply to the juvenile court (Article 374 and 387a of the Civil Code) or, in an emergency, to the judge in chambers (Article 584 of the Judicial Code).
This means that both of them exercise and will continue to exercise the elements of parental authority ("custody" of the child, right to education, right to administer legally and to legal usufruct of the child's assets) and that neither of the parents may make a decision alone which would impede the other parent's exercise of his or her own prerogatives. Each parent must therefore obtain the other parent's agreement and, if not, he or she cannot act. However, as regards "custody" of the child, for instance, the parent with whom the child is living at the time will take the decisions concerning daily routine, good manners, etc. As for third parties (of good faith), each parent is considered to act with the other's agreement when acting by himself or herself under this authority (Article 373 of the Civil Code).
This depends on the individual case (cf. point 5). It could be the juvenile court (Article 387a of the Civil Code) - and, if so, this will be the juvenile court competent for the child's place of residence - or the justice of the peace (Articles 223 and 1479 of the Civil Code and Article 594(19) of the Judicial Code; the Justice of the peace is also competent with regard to guardianship of minors - Article 594(6) Judicial Code), the president of the court of first instance ruling in summary proceedings in connection with a divorce (Article 1280 of the Judicial Code) or the divorce judge. According to the individual case, the application is instituted by petition or by summons. Depending on the action brought, certain documents have to be attached to the application.
The judge rules on the parties' applications. Minors who are capable of forming a judgment of their own can be heard in any proceedings that concern them, at their request or on the judge's decision (Article 931 of the Judicial Code). An emergency procedure can be requested (Article 584 of the Judicial Code) from the president of the court, who gives a provisional ruling.
The rules of ordinary law apply (cf. sheet "Legal Aid - Belgium").
In the case of a divorce by mutual consent, when the parties have agreed on the practical details of parental authority, when the public prosecutor has given an opinion and when the judge has approved the agreement and granted the divorce, there are, in theory, no grounds for lodging an appeal.
It is possible to appeal against a decision on parental authority, usually within one month. This deadline is calculated from date on which the judgment is handed down or notified (appeal against a ruling given on an ex parte application). Pronouncement of the judgment is sometimes delayed (at the public prosecutor's request, for example) in order to extend the deadline.
It is up to the judge who determined when the child might visit each parent or who established a parent's or a third party's right to a personal relationship to add enforcement measures to the decision after the event, unless another judge has since been assigned to the case. The judge specifies the nature of these measures and the details of their implementation with regard to the child's interests and, if he or she considers it necessary, designates persons authorized to accompany the bailiff in enforcing the decision. The judge can set a periodic penalty payment to ensure that the decision is respected.
Reference of a case to a court is subject to different conditions depending on the judge competent to enforce the decision (filing of submissions or letter to the court registry in the case of juvenile court judge or the president of the court of first instance; inter partes application to the justice of the peace or the juvenile court judge in the event of non-compliance with the arrangements for divorce by mutual consent; and ex parte application where absolutely necessary). The decision handed down is immediately enforceable. There is no charge for registering the application.
Since 1 March 2005, pursuant to Regulation No 2201/2003, known as "Brussels IIa", all decisions taken in a Member State (except Denmark) that concern parental responsibility are, in theory, automatically recognised. However, with the exception of decisions regarding rights of access and the return of an abducted child, enforcement presupposes that an exequatur application has been made to the president of the court of first instance, who will rule according to the forms of summary proceedings.
This simplified procedure does not, however, apply to decisions given before this date outside of divorce proceedings. In this case, it would be advisable to follow the usual procedure for recognition and enforcement.
Any interested party can apply to the court of first instance in order to obtain the non-recognition of a decision given abroad. This court can suspend proceedings if the decision in question is subject to an appeal in its country of origin.
Belgian courts can, in theory, apply the law applicable in the child's usual place of residence.
However, the law of the State of which the child has nationality applies if the former law does not make it possible to ensure the necessary protection for the child's person or assets. Belgian law applies in the event of it being materially or legally impossible to take the measures provided for by the foreign law in question.
Last update: 15-01-2009