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Last update: 30-10-2006
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Parental responsibility - Estonia

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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 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 court, what issues can the judge decide upon relating to 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 practice? 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 Estonia? Which procedure applies in these cases? 15.
16. To which court should I turn in Estonia 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 Estonia 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?

According to the Estonian Constitution and the Family Law Act, parents have equal rights and duties in respect of their children.

Parents have the right and duty to raise the child and to care for their child. A parent is required to protect the rights and interests of his or her child. A parent is the legal representative of the child. As the legal representative, the parent has the authorisation of a guardian. A parent has the right to demand his or her child back from any person who has control of the child without legal basis. A parent must exercise the parental responsibilities in the interests of the child.

The duty of maintenance of the child lies upon a parent irrespective of whether the parent is the holder of parental responsibilities or not.

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

According to Estonian law, the parental responsibilities arise solely on ground of ascertainment of filiation. If filiation has been ascertained with respect to just one parent, she (he) holds the parental responsibility. If filiation has been ascertained with respect to both parents, they have (joint) parental responsibility over the child.

A parent may be deprived of parental rights by the decision of a court.

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

For a child whose parents are deceased, missing or with restricted active legal capacity, or are deprived of parental rights, guardianship is established. Guardianship may also be established for a child who is left without parental care for other reasons (e.g. if the parents neglect to exercise their parental responsibility).

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The purpose of establishing guardianship over a child is to ensure that the child is properly taken care of and that his/her personal and proprietary rights and interests are protected. Guardianship is exercised by a guardian appointed by a court. The guardianship authority proposes the appointment of a person as a guardian.

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

The divorce or splitting up of the parents will not, as such, affect the parental responsibilities of either parents. Both parents normally retain full parental responsibility even if they live apart.

The parents are expected to agree on with which parent the child shall reside and in what manner either of the parents shall participate in the raising of the child. Such agreement may also be informal. In the absence of the agreement between the parents, the guardianship authority or a court shall settle the dispute at the request of either parent. The court can confirm an agreement of the parents or regulate questions of parental responsibility mandatorily.

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

As indicated above, agreements between parents concerning parental responsibility may be concluded informally, i.e. without a specific form. Parents are free to conclude an agreement in the written or notarised form, but such agreements between parents are not enforceable by way of enforcement procedure, regardless of their form. In case a dispute arises concerning the stipulations of the agreement between the parents, a court may review the agreement as to the merits.

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Agreements between parents can be confirmed by the decree of the guardianship authority or by a court decision. Both of these types of acts are legally binding and enforceable, but may be challenged in court according to the general procedure.

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?

Alternatively to court proceedings, the guardianship authority (the social welfare unit of a local self-government) may settle disputes between parents relating to matters concerning the exercise of parental responsibilities, such as in what manner the parent living apart from the child is to participate in the raising of the child and how that parent is to exercise contact with the child. The guardianship authority may resolve the issue by a decree. The guardianship authority will normally involve a child protection official in the resolution of the dispute.

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

The judge may decide upon a variety of issues relating to the child, such issues are not exhaustively listed in the law. The competence of the court involves matters relating to the the residence of a child, the visiting rights of the parents, as well as the obligation to pay maintenance and the scope thereof. The court may also decide in what manner a parent living apart from the child shall participate in the raising of the child.

At present, the Estonian family legislation does not foresee the possibility to award single custody to one of the parents, but as indicated above, the court is basically competent to resolve disputes in all individual issues which otherwise belong to the sphere of parental responsibility.

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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?

There is no concept of “single custody” in Estonian legal system at the present time. As indicated under No. 2 and No. 8, parents generally have equal parental responsibility regardless of whether either of them resides with the child or not. The parents are expected to agree on matters relating to the child, including the question how either parent is to be involved in the decision-making in matters relating to the child. If the agreement cannot be reached, the court is competent, upon a claim of a parent, to resolve disputes in all individual issues which otherwise belong to the sphere of parental responsibility.

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

There is no concept of “joint custody” in Estonian legal system at the present time. Both parents have equal parental rights and responsibilities which are based on the ascertainment of filiation. Thus, it is presumed that the parents exercise their responsibilities jointly. In case of dispute concerning the exercise of parental responsibilities, the court may, in essence, restrict certain competences of a parent which otherwise belong to the sphere of parental responsibility.

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?

As indicated under No. 6, a dispute concerning parental responsibilities may be resolved by the guardianship authority or a court. There are no specific formal requirements for a dispute to be resolved by the guardianship authority.

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An action may be filed with the court of the residence of the defendant (first instance court: city or county court – linna- or maakohus). A plaintiff may file an action for maintenance also with the court of the plaintiff’s residence. A divorce action may also be filed with the court of the residence of the plaintiff if minor children reside with the plaintiff (matters relating to parental responsibility may be reviewed together with an application for divorce).

A statement of claim and documentary evidence must be submitted to the court in Estonian in written form. If the written petition, appeal or documentary evidence submitted to the court by a participant in the proceeding is not in Estonian, the court may demand a certified translation of the petition, appeal or documentary evidence by the date fixed. If the translation is not submitted by the date fixed, the court may disregard the petition or the document. Petitions, statements of claim, appeals, appeals in cassation, appeals against rulings and written answers shall be filed with the courts in legible typewritten form in A4 format.

The claim must include the name of the court, personal information concerning the applicant and the defendant (the spouses) as well as their common minor children, and the clearly expressed quest of the applicant. The claim must contain the facts on which the action is based; the claimant has to list and produce the evidence in his/her disposal in the statement of claim.

A statement of claim must be signed by the plaintiff or his/her representative. The representative shall annex an authorisation document or other document which proves his or her authorisation.

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Documentary evidence which is listed as an annex to a statement of claim shall be annexed to the statement of claim. A statement of claim and annexes thereto shall be filed with the court together with one copy of the statement of claim and the annexes for each defendant and third party.

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

Courts review cases relating to parental responsibility according to the provisions of the Code of Civil Procedure.

In emergency cases, the measures for securing an action can be applied. Securing an action is admissible, if failure to secure the action may render compliance with the judgment difficult or impossible. Measures for securing an action include, e.g., prohibition on the defendant from departing from his or her residence or prohibition on the defendant from entering into certain transactions or performing certain acts. The court may also establish a security on the property of the defendant (including the establishment of a judicial mortgage on an immovable belonging to the defendant; making a notation in a property register concerning a prohibition on disposal of property; and the seizure of a movable belonging to the defendant which is in the possession of the defendant or another person).

A court shall adjudicate a petition for securing an action not later than the first working day following the date of submission of the petition for securing of an action. A ruling on securing an action shall be executed promptly. The court shall send the ruling to a bailiff, registrar or other person obligated to execute the ruling for execution.

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

The court may, fully or partially, release a natural person from payment for legal assistance and to charge the advocate’s fees to the state if the court finds that the person’s financial situation does not allow him/her to bear the costs of the proceedings.

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

Yes. It is possible to appeal against the decision relating to parental responsibility according to the general provisions governing the appeal proceedings, if the appellant finds that the judgment made in the first instance contains errors (e.g. the court of first instance has applied the law incorrectly or the provisions of procedural law have been violated).

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 cases the need arises for enforcement, the person seeking enforcement must turn to a bailiff. The decree of the guardianship authority, an agreement between parents confirmed by court (a compromis) and a court decision can serve as the basis for enforcement (enforcement order).

Enforcement is carried out by bailiffs operating in the jurisdiction of the city or county court of the residence of defendant or of the location of his/her property. Enforcement proceedings are initiated upon an application of the person seeking enforcement. The enforcement order must be attached to the application. An application must be in the written form and contain the following data:

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  • the name of the bailiff,
  • personal information concerning the applicant and the defendant,
  • data concerning the representative of the applicant and
  • a document of authorisation as well as data concerning the property of the defendant as far as available.

A list of documents attached to the application must be given in the application.

If under the enforcement document the defendant is obligated to transfer the child, the bailiff shall conduct the enforcement procedure at the presence of the representative of the custodial or educational body. If necessary the bailiff may bring forward a question in front of the custodial and child welfare body about temporary placement of the child into the child care institution

In case of the maintenance allowance arrears the claim for payment may be made to the property of the debtor in the general order.

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 Estonia? Which procedure applies in these cases?

In the first order, the order of recognition of the foreign court judgment may be based on an international agreement to which Estonia is a party. In Estonia it is possible to recognize and enforce decisions concerning maintenance and parental responsibility under the following conventions:

  1. the Hague Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations;
  2. the New York Convention of 20 June 1956 on the Recovery Abroad of Maintenance;
  3. the European convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children (Luxembourg, 20 June 1980).

The documents must be sent through the central authority of the country in question to the Estonian Ministry of Justice. The request for recognition of the decision on maintenance allowance must be appended by:

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  • a copy of the judgment of the court, certified pursuant to the law of the state of the location of the court or the arbitral tribunal which made the judgment, and an official confirmation regarding the entry into force of the judgment;
  • a document which confirms that the defendant who did not participate in the court proceeding was served a summons in due time pursuant to the law of that state on at least one occasion;
  • a document which proves that the judgment is enforceable pursuant to the law of the state where the judgment was made and that the judgment has been served to the defendant;
  • a document concerning the execution of the judgment if the judgment has been executed;
  • certified translations into Estonian of the documents.

Upon presentation of the request for recognition and enforcement of the decision concerning custody rights over children the conditions, stipulated in the ’Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children’ must be taken into account.

The Estonian Ministry of Juctice shall forward the documents to the city or county court of the residence of the defendant. The court shall make a ruling in which it recognises the judgement of a foreign court judgement and allows its enforcement or declines recognition.

A copy of the ruling shall be forwarded to the petitioner together with the information, how the enforcement shall be carried out (e.g. in the maintenance matters it is necessary to choose a bailiff, to send an application to him/her and to pay the advance payment of the bailiff’s fee).

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

The potential opponent to the recognition shall be involved in the proceedings as an interested person on motion of the court hearing the petition. As indicated under No. 14, recognition of foreign judgments is carried out under the procedural provisions governing non-contentious matters.

The court ruling stipulates the procedure and term of appeal. The appeal can be filed with the court that made the judgement within 10 days as of public communication of the ruling or if the ruling was made without summons to court of the parties, the term of appeal shall be considered commenced as of service of the ruling.

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

According to Estonian Private International Law Act, family law relationships between a parent and a child are governed by the law of the state of residence of the child.

The Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations applies to maintenance obligations arising from family relationships.

Further information

« Parental responsibility - General information | Estonia - General information »

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Last update: 30-10-2006

 
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