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Parental responsibility - Czech Republic

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TABLE OF CONTENTS

1. What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility? 1.
2. As a general rule, who has the parental responsibility over a child? 2.
3. If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place? 3.
4. If the parents divorce or split up, how is the question of parental responsibility determined for the future? 4.
5. If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected in order to make the agreement legally binding? 5.
6. If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court? 6.
7. If the parents go to the court, what issues can the judge decide upon relating the child? 7.
8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent? 8.
9. If the court decides that the parents shall have joint custody of a child, what does this mean in practise? 9.
10. To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application? 10.
11. Which procedure applies in these cases? Is an emergency procedure available? 11.
12. Can I obtain legal aid to cover the costs of the procedure? 12.
13. Is it possible to appeal against a decision on parental responsibility? 13.
14. In certain cases, it may be necessary to apply to a court or another authority to have a decision on parental responsibility enforced. Which procedure applies in such cases? 14.
15. What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in the Czech Republic? Which procedure applies in these cases? 15.
16. To which court should I turn in the Czech Republic to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases? 16.
17. Which is the applicable law in a proceeding on parental responsibility where the child or the parties do not live in the Czech Republic or are of different nationalities? 17.

 

1. What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

The term “parental responsibility” is anchored in the Family Act. This term represents a summary of the rights and responsibilities:

a) when caring for a child who is a minor, especially including the care for the child’s health and its physical, emotional, intellectual and moral development,

b) when representing a child who is a minor,

c) when administering the child’s assets.

When exercising the rights and responsibilities within the framework of parental responsibility, parents are especially obliged to protect the interests of the child, to guide the child’s behaviour and to carry out the supervision of the child corresponding to the child’s level of development. They have the right to use reasonable discipline in such a way so that the child’s dignity is not affected and so that there is no threat to the child’s health or its physical, emotional, intellectual or moral development. Parents are obliged to provide a child, who is capable of reaching its own opinion and assessing the scope of any measures concerning it, with all the necessary information and the opportunity to freely express an opinion as to all the decisions concerning the essential matters involving the child. The parents represent the child in all legal acts for which the child is legally a minor.

2. As a general rule, who has the parental responsibility over a child?

A child’s biological parents are generally the holders of the parental responsibility concerning said child. If the child is adopted, this responsibility is then transferred to the adoptive parents. It is of no consequence whether or not the couple is married or whether the child was born into a marriage or outside of wedlock. Parental responsibility arises with the birth of the child. If this involves a relationship, which arises as a result of adoption, the parental responsibility commences when the court’s decision on the adoption of the child comes into effect.

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Parental responsibility applies to parents, provided they are in possession of the full capacity to undertake legal acts. However, the court may also recognise parental responsibility concerning a child in the case of an underage parent who has reached sixteen years of age, provided said parent meets the required prerequisites for the performance of the rights and responsibilities arising from the parental responsibility.

If one of the parents is no longer alive, is unknown or does not possess the full capacity to carry out legal acts, the parental responsibility falls to the second parent.

If the legal prerequisites are met, the court may decide on the suspension of the performance of the parental responsibility, the limitation of the performance of the parental responsibility or the divestment of the parental responsibility.

The court may suspend the performance of the parental responsibility, if a significant impediment prevents a parent from carrying out his or her parental responsibilities and if it is in the interests of the child to do so.

The court may limit a parent’s parental responsibility, if said parent is not correctly carrying out his or her parental responsibilities and if it is in the interests of the child to do so. If a parent abuses his or her parental responsibility or seriously neglects it, the court will divest said parent of his or her parental responsibility.

If the child’s parents have died, been divested of their parental responsibility, have had the performance of their parental responsibilities suspended or are not in full possession of the capacity to carry out legal acts, the court will appoint a guardian for the child who will bring the child up, represent it and administer its assets in the place of the child’s parents.

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If the parent commits an intentional crime against his or her child or if said parent uses a child of less than fifteen years of age for committing a crime or commits a crime as an accomplice or an abettor, the court will always assess whether or not this constitutes a reason for commencing proceedings on the divestment of the parent’s parental responsibility.

The above mentioned court decisions do not lead to the extinction of the parent’s obligation to provide infant’s maintenance.

3. If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

The parents represent the child in all legal acts for which the child is not fully legally competent. Neither of the parents may represent their child, if this involves legal acts in matters where a conflict of interest could arise between the parents and the child or between several children of the same parents. If neither of the parents is able to represent the child, the court will appoint a trustee for the child who will represent the child in proceedings or during the performance of a specific legal act. This trustee is usually designated by a body carrying out child social welfare protection.

If the child’s parents have died, have been divested of their parental responsibilities, have had the performance of their parental responsibilities suspended or are not in full possession of the capacity to carry out legal acts, the court will appoint a guardian for the child who will bring the minor up, represent it and administer its assets instead of the child’s parents. The guardian should especially be an individual recommended by the parents. If nobody has been thus recommended, the court will appoint a guardian from among the child’s relatives or individuals close to the child or its family or another natural person. If no natural person may be appointed the child’s guardian, the court will appoint a child social welfare protection body. The guardian is liable to the court for the fulfilment of this function and is obliged to provide the court with reports on the child under guardianship and accounts concerning the administration of the child’s assets. The guardian does not have, however, any maintenance obligations with regard to the child. Furthermore, the guardian is not a holder of the parental responsibility; nevertheless, the relationship between a guardian and a child is governed by the provisions of the Family Act concerning the rights and obligations of children and parents. All of the guardian’s decisions in essential matters concerning the child require the approval of the court.

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The Family Act further enables some of the partial entitlements and responsibilities pertaining to the parental responsibility to be undertaken by another appropriate individual. For example, it is admissible for the court to entrust the child to the care of another natural person, if said person provides a guarantee of a proper upbringing and agrees with being entrusted with the child’s care. If this is the case, the court specifies the scope of the rights and obligations of such person in relation to the concerned child.

A further option is to entrust the child into foster care. When caring for the child, the foster parent commensurately carries out the rights and responsibilities of the child’s parents. The foster parent does not have, however, any maintenance obligations with regard to the child and he or she may only represent the child and administer the child’s affairs in regular matters.

In those cases where the child’s property rights may be under threat, the court will appoint a trustee for the increased protection of the child’s assets. Furthermore, a trustee must be appointed if the court has taken a decision on the limitation of the performance of the parental responsibility and he/she may be appointed if it is in the child’s interest to do so. A trustee may be a natural person with the full capacity to carry out legal acts, whose life style guarantees the correct performance of this function and who agrees with being appointed a trustee. If a natural person cannot be appointed, the court generally appoints a child social welfare protection body as a trustee.

If there are any serious reasons why the parents cannot ensure the child’s upbringing, or when the child upbringing cannot be duly ensured due to the serious reasons or the upbringing is seriously threatened or violated, the court may place the child in institutional care or place the child in an institution for children requiring immediate assistance.

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4. If the parents divorce or split up, how is the question of parental responsibility determined for the future?

In these cases, preference is always given to an agreement reached between the parents. In the case of an agreement, it is necessary to resolve the question of whom the child will be entrusted to and how each of the parents should contribute to the child’s maintenance. However, this agreement requires court approval to become valid. An agreement may also be used to regulate the child’s contact with the parents; this agreement does not, however, require court approval. If the parents do not reach an agreement on the essential matters regarding the performance of the parental responsibility, the court will decide. The court may also decide in these matters without receiving a proposal for it to do so, if this involves an underage child whose parents do not live together and who have not reached an agreement on the question of the child’s maintenance and upbringing. In the case of a divorce, the settlement of who will be entrusted with the child’s upbringing and the manner in which each parent will contribute to the child’s maintenance (whether this is settled by means of an agreement or by a court decision) is an essential prerequisite of the divorce.

5. If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected in order to make the agreement legally binding?

If an agreement regulating the performance of the parental responsibility is to take the place of a court decision on the rights and responsibilities of the parents concerning an underage child in the period after a divorce (in particular the designation of whom the child’s upbringing will be entrusted to and how each parent should contribute to the child’s maintenance) , such an agreement requires court approval to be valid. However, the agreement on the contact between the parents and the child does not require any such approval.

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6. If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

In such cases, it is possible to make use of the services of mediators who can be found at each District Court. Their task is to attempt to achieve a peaceful settlement between the two parties; they play the role of the intermediary in this process.

Apart from that, it is possible to use the so-called marriage, family and interpersonal relations counselling services, which involve assistance from qualified psychologists and social workers. There are also many non-profit organisations in the Czech Republic that can be contacted in this context.

Moreover, as regards the parental responsibility, the parents may turn to the child social welfare protection body.

7. If the parents go to the court, what issues can the judge decide upon relating the child?

It can be generally stated that the court may decide on the following matters concerning the care for the child:

a) educational measures,

b) adoption,

c) guardianship and trusteeship,

d) maintenance.

The most common matter for the court’s deliberation is who will be entrusted with the child’s upbringing. This question is most commonly resolved in the case of the divorce of the parents. The child is often entrusted to the care of one of the parents. The court above all takes into account the interests of the child with respect to its personality, the upbringing abilities of its parents and other relevant factors. If, however, both parents are capable of caring for the child and if they are both interested in bringing up the child, the court may entrust the child to the joint or alternating care of both parents, if it is in the child’s interest to do so and if this will better secure the child’s needs. The court is also entitled to decide on the amount to which each parent must contribute to the child’s maintenance. When designating the amount of maintenance, it is necessary to take into account the assets, abilities and opportunities of the parents, the child’s justified needs and the amount to which each of the parents will personally care for the child.

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The court may also decide on the matters concerning the regulation of the child’s upbringing and maintenance without receiving a proposal for it to do so, provided this involves a child who is a minor. As well as the aforementioned matters, the court may also issue a decision regulating the child’s contact with its parents (this may be limited or forbidden, if this is in the child’s interests) , its grandparents or its siblings.

8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

The upbringing and care for the child is only one of the partial rights and responsibilities, which fall under the parental responsibility. If the parent to whom the child’s upbringing has not been entrusted has not been divested of his or her parental responsibility or had it limited in some way, that parent is further entitled to make decisions on the fundamental matters concerning the child.

9. If the court decides that the parents shall have joint custody of a child, what does this mean in practise?

In association with the divorce, the Family Act differentiates between the entrusting of the child to joint or alternating care, provided that to do so is in the best interests of the child and that the child’s needs will thus be better secured. Such decision may be taken if the parents are able to communicate and cooperate as far as the child’s upbringing is concerned.

Joint care

The court will take decision on entrusting the child to the joint care of the parents, if the child’s parents live together and jointly pay for part of their requirements and if other conditions are fulfilled. In practise, the joint care may be of a form whereby one parent secures the child’s school needs and the other the child’s sports activities or one looks after language studies, while the other attends to extracurricular activities. Both parents then share the provision of medical care and the child’s material needs, such as cooking, cleaning, care for clothing and so on.

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Alternating care

Alternating care means that the child is entrusted to the care of one parent and then the other parent for a precisely defined time interval. The court simultaneously defines the rights and responsibilities in these alternating time intervals. The alternation between the parents most frequently occurs every month. In the case of the alternating care of the child, it is essential that the parents live close to one another, especially from the point of view of school attendance.

10. To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

It is necessary to contact the District Court (in Brno the Municipal Court) , which is pertinent to the district where the child is resident with any proposals concerning parental responsibility. The court may also decide in matters concerning the care of a minor without any such proposal having been lodged.

The formalities and enclosures for the proposal depend on what specific type of proposal is involved. It is necessary as a rule to clearly designate the individual submitting the proposal, the child involved and the defendant. It is further necessary to set out the claimant’s claim, the reason for the claim and the proposed evidence supporting the claim. The proposal must include all the important documents concerning these matters – for example, the birth certificate, the marriage certificate, the previous court decision in the matter concerning the child and so on. The proposal must be submitted in so many copies that each party gets one copy and one copy remains in the court.

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If the proposal does not meet the prescribed formalities or if any of the enclosures are missing, the court will request the claimant to rectify this.

11. Which procedure applies in these cases? Is an emergency procedure available?

The court may commence proceedings concerning the care of a child who is a minor without the necessity of a proposal being lodged, but it is also of course possible to submit such a proposal to commence proceedings.

Prior to issuing the final decision, the court may impose upon the defendant the responsibility to pay maintenance or to give the child over to the care of the second parent or to an individual appointed by the court by means of a preliminary ruling.

The Civil Procedure Code further regulates the specific procedure for cases where a minor finds itself in a situation without any care or where its life or proper development are seriously threatened or violated. In such a case, the court will issue on the suggestion of a competent child social welfare protection body a preliminary ruling so that the child is placed in the care of the individual defined in said ruling. The decision on the proposal for any such preliminary ruling must be reached without delay or at the latest within 24 hours of it being submitted. The preliminary ruling remains in place for a period of three months from it becoming enforceable; if proceedings concerning the matter are commenced prior to the expiry of this period, the preliminary ruling will remain in effect until such time as a ruling concluding the proceedings becomes enforceable. Once such a ruling has been enacted, it is immediately enforced, whereby the court cooperates with the appropriate bodies to place the minor in the care of the designated individual; if the child is currently staying with another individual, he or she will be taken from said individual.

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12. Can I obtain legal aid to cover the costs of the procedure?

According to the Court Fees Act, proceedings concerning guardianship matters and the care of the court for minors are exempt from any court fees. Therefore, a claimant is not required to pay any court fees when lodging a proposal concerning parental responsibility.

However, the compensation for the costs associated with the appointment of a solicitor is a different matter. In such a case, it is possible for the court to decide on the provision of free legal assistance according to the Civil Procedure Code. The provision of the free legal assistance occurs, if it is justified by the individual’s situation, meaning that said individual is unable to pay the solicitor’s fees. In practise, this means the unfavourable assets or social situation of the affected individual. The unfavourable assets and social situation is defined from the point of view of the conditions generally set for an exemption from court fees (unemployment, invalid’s benefit, maternal or paternal leave) , but it is always necessary to take into account the specific circumstances of the case.

Furthermore, provided the prerequisites set out in the Act on Attorneys are met, it is possible to request the Bar Association to appoint a free counsel.

13. Is it possible to appeal against a decision on parental responsibility?

Yes, it is possible to appeal against a court decision concerning parental responsibility. The District Courts are the competent courts at the first level for the proceedings concerning parental responsibility. Therefore, the Regional Courts (or the Municipal Court in Prague) will hear any appeals. It is possible to lodge an appeal against the court decision within fifteen days of the receipt of a written copy of said court decision against which the appeal is aimed. If a corrective decision has been issued with regard to the decision’s statement, this appeal deadline will start again from the time when said corrective decision comes into legal effect. An appeal is also considered as lodged in time, if it is submitted after the fifteen-day deadline because the appellant followed incorrect instructions given by the court.

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Furthermore, it must be stressed out that the decision may be preliminary enforceable, meaning that it can be enforced even though it has not come into legal effect yet because of a lodged appeal.

14. In certain cases, it may be necessary to apply to a court or another authority to have a decision on parental responsibility enforced. Which procedure applies in such cases?

In the Czech Republic, it is necessary to lodge any proposal for the enforcement of a decision concerning parental responsibility to the court; the procedure during the enforcement of the decision is regulated by the Civil Code Procedure.

In this case, it is necessary to submit the proposal for the enforcement of the decision to the District Court, which is pertinent to the district where the minor is resident. Such a proposal, which must contain all the relevant information (the designation of the obliged party, the authorised party, the definition of the scope and content of the obligation, the definition of the deadline for the fulfilment of said obligation and the specification of the so-called enforceable title–decision which is to be enforced) , must include a copy of the decision (or the court approved agreement on the upbringing of a minor or the regulation of contact with a minor) , including confirmation of its enforceability. Prior to ordering the enforcement of the decision, the court will request the party refusing to submit to the court decision or failing to adhere to the court approved agreement on the upbringing of a minor or the agreement regulating the contact with a minor to submit to the court decision or the court approved agreement. When requesting the party in question to do so, the court will draw said party’s attention to the consequences of failing to meet the responsibilities set out in the decision or the agreement. However, under specific circumstances, the court may order the enforcement by withdrawal of the child even without this request. In this phase of the proceedings, the court may also request the participation of the appropriate child social welfare protection body. If the request for compliance remains fruitless, the court will impose a fine upon the party who has not voluntarily adhered to the decision or the court approved agreement concerning the parental responsibility; the fine may also be imposed repeatedly, whereby the individual fines must not exceed 50,000 CZK. As well as this, the court may order the withdrawal of the child from the party, with whom the child is not supposed to be upon the basis of the decision or the agreement, and place the child in the care of the party who has been entrusted with the child’s upbringing according to the decision or the agreement or to whom the child should be returned or to the party for whom the decision or the agreement has granted the right of contact with the child.

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15. What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in the Czech Republic? Which procedure applies in these cases?

Court decisions on parental responsibility which are issued in different countries come into effect in the Czech Republic in accordance with the International Private and Procedural Law Act, provided they have come into legal effect according to the confirmation of the appropriate foreign body and have been recognised by the Czech bodies with the exceptions further specified in the Act. Once these conditions have been fulfilled, the procedure is analogous to the execution of a decision issued by a Czech court – see the answer to the previous question. Our body will recognise all such foreign decisions after checking that they fulfil the recognition conditions; it will therefore recognise a decision without the issuance of a special statement whereby said decision will be treated as if this involved a decision issued by our body.

International conventions regulating this issue that are binding for the Czech Republic must be respected and have priority over the national law.

16. To which court should I turn in the Czech Republic to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

As has already been stated above, the recognition of foreign decisions in matters of parental responsibility does not involve the issuing of a special statement concerning the decision of the Czech body and this recognition of the foreign decision is not preceded by any special recognition proceedings. The International Private and Procedural Law Act states that the foreign decision may not be recognised or executed, if to do so would contravene Czech public order. In such a case, it is necessary to submit the proposal to this end to the appropriate court (see above – question no. 10 and 14).

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17. Which is the applicable law in a proceeding on parental responsibility where the child or the parties do not live in the Czech Republic or are of different nationalities?

The International Private and Procedural Law Act states that the relationships between parents and children, including upbringing and maintenance, are governed by the law of the state of which the child is a citizen. If the child lives in the Czech Republic, these relationships may be assessed in accordance with Czech law, if to do so is in the child’s best interests.

This Act further states that Czech courts have jurisdiction in all matters concerning the upbringing and maintenance of minors and all the associated matters, provided said minors are Czech citizens, even if they are resident abroad. The Czech consular body may also assume the care of Czech minors who are living abroad and are not in parental care and it may do so to the extent of the court’s jurisdiction, provided that the state where the child is living recognises such jurisdiction. With regard to matters concerning minors from foreign countries who are resident within the Czech Republic, the Czech courts will only put in place those measures which are necessary for the protection of said minor’s person and assets and will then inform the bodies in the minor’s home country of these measures. If the body from the minor’s home country does not modify the minor’s circumstances within a reasonable deadline, the Czech court will do so. In the case of a decision dissolving the marriage of the parents of a minor living within the territory of the Czech Republic, the court will regulate the parent’s rights and responsibilities with regard to the child for the period after the divorce, provided the minor is to remain within the local territory and if the child’s home country does not implement any other measures.

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With regard to this question, it is however necessary to point out that the aforementioned provisions of the International Private and Procedural Law Act are only used, provided they are not at odds with any international treaties to which the Czech Republic is bound. On 4. 3. 1999, the Czech Republic signed the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. This Convention designates that the court or administrative bodies of the contracting party where the child is habitually resident have the authority to put in place measures for the protection of the person or the assets of the child. This applies with the exception of Article 7, whereby there is a change in the child’s habitual residence to another contracting country, meaning that the bodies of the contracting party where the child has its new habitual residence will assume jurisdiction. When executing their jurisdiction concerning the protection of the child and its assets, the bodies of the contracting parties use their own law. However, if the protection of the person or assets of the child so requires, they may exceptionally use or take into account the law of another country with which the given situation is fundamentally related. If the child’s habitual residence changes and if the child is to live in another contracting country, the conditions for the use of the measures adopted in the country where the child originally had its habitual residence are subject to the law of the new state from the time of the change in residence. The acknowledgement or annulment of the legal parental responsibility (without intervention from a court or administrative body) is subject to the law of the country where the child has its habitual residence. The acknowledgement or annulment of the parental responsibilities according to an agreement or a unilateral legal act (without intervention from a court or administrative body) is subject to the laws of the state where the child had its habitual residence at the time when the agreement or the unilateral legal act came into effect. Parental responsibilities, which exist according to the law of the country where the child had its habitual residence, remain in force after a change of the child’s habitual residence to another country. If the child’s habitual residence changes, the legal acknowledgement of parental responsibilities to an individual, who until that time has not had any such responsibilities, will be subject to the law of the country of the child’s new habitual residence. The performance of the parental responsibilities is subject to the law of the country of the child’s habitual residence. If the child’s habitual residence changes, this will become subject to the law of the country of the child’s new habitual residence.

Furthermore, the Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations and the European Convention of 20 May 1980 on Recognition and Enforcement of Decisions Concerning Custody and on Restoration of Custody of Children are binding as well.

Further information

Links to websites:

Courts in the Czech Republic

The European Judicial Network in Civil and Commercial Matters – information sheets on parental responsibility

Consulting services for marriages, families and interpersonal relations



« Parental responsibility - General information | Czech Republic - General information »

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Last update: 06-11-2006

 
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