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Parental custody is a complex legal concept in Hungarian law, comprised of the parent’s rights and obligations with respect to his/her minor child. Article 71 (2) of the Hungarian FLA identifies the following key elements of parental custody:
right and obligation with respect to caring for and raising the child;
right and obligation with respect to managing the child’s assets;
right and obligation with respect to the child’s legal representation; and furthermore
right and obligation with respect to appointing a guardian, and excluding any particular persons from the guardianship.
Parental custody means that it is the parent’s right and obligation to make decisions on, and proceed in, fundamental matters concerning the minor child. Nevertheless the parents must ensure that their child, having reached a certain degree of maturity can express his/her opinion before any decisions are made concerning him/her, and the parents must take the child’s opinion into account.
According to the general rule laid down in Hungarian family law (Article 72 (1) of the FLA) , the parents, whether married to each other or not, are entitled to joint (and equal) parental custody of their children.
The major exceptions from the general governing rule of Hungarian family law referred to in point 2, i.e. the parents’ joint custody are the following:
Exercising parental custody in the event that the parents’ marriage is dissolved or the parents have separated
As explained in Point 2, the parents are entitled to joint custody of their child(ren). The separation of the parents (having lived in marriage or common-law marriage) does not in itself have an impact on the parents’ right in respect of joint custody of their minor child ipso iure; therefore the parents must continue to exercise joint parental custody. In the majority of such cases, however, exercising joint parental custody becomes impossible due to the changed relationship between the parents, thus the issue of parental custody usually needs to be legally solved. The issue is mostly settled by an agreement between the parents, or lacking this, by a judicial decision.
The legal settlement of parental custody in such cases will be discussed in greater detail in the questions below.
Parental custody in respect of a child born out of wedlock
If the child’s parents were not married at the time of the child’s birth, from a legal point of view the child has only one parent (the mother) until the paternity of the child is legally established (by a voluntary recognition of paternity, a judicial decision establishing paternity or the parents’ subsequent marriage). In such cases the mother has exclusive custody of the child until paternity is established.
Parental custody in the event of either parent’s death
If either parent dies the other parent shall have exclusive custody of the child.
Substitution of parental custody with guardianship
Pursuant to Article 93 of the FLA, if a minor child is not under parental custody, it shall be taken into guardianship. In Hungarian law, guardianship is the legal concept replacing parental custody, which is resorted to cases when neither of a minor child’s parents is suitable, or entitled to exercise parental custody. Such a situation may arise in the following cases:
if both of the minor child’s parents die;
if a judicial decision has terminated the parental custody of both of the minor child’s parents.
According to Hungarian family law the termination of parental custody by judicial decision is sort of a sanction subject to strict legal conditions. It can only be applied in certain cases as defined by the law (Article 88 of the FLA) (for example, if the parent’s behaviour is seriously hurting or endangering the child, particularly its physical well-being, intellectual or moral development; if the parent is sentenced to imprisonment for having committed a willful offence against the person of the child etc.). The legal consequences of terminating parental custody are that such parent is not entitled even to partial custody in respect of the child, and he/she is not allowed to have any contact with the child (except for cases where such contact is exceptionally allowed by the court or the Guardianship Authority in the interest of the child). If a court decision reinstates a parent’s custody which was formerly terminated, the guardianship is ipso iure terminated.
if the parental custody rights of both of the minor child’s parents are suspended (dormant)
Parental custody is suspended (becomes dormant) by law if the parent is temporarily or permanently prevented from exercising parental custody for whatever reason (eg. if the parent is fully or partially incapable; if the parent residence is unknown etc.). If the reason for suspending parental custody does not exist any more, parental custody revives ipso iure, and the guardianship is terminated.
In the cases outlined above the Guardianship Authority shall ex officio appoint a guardian. Except for certain exceptions set out in the Act, the legal meaning of guardianship is identical with that of parental custody (Article 102 of the FLA). The Guardianship Authority appoints principally the person that the parent named as guardian in a public document or for the event he/she dies, in his/her will; lacking this it should be another person suitable for guardianship (principally a relative of the minor or a person with other family ties to the minor).
Parental custody in case of adoption
If a child is adopted, the adopted child acquires the same legal status as if he/she were a natural child of the adoptive parent(s). In such a case, parental custody is exercised by the adoptive parent (or adopting spouses) while the child is a minor, to the same extent as if he/she (they) were the natural parent(s) of the child. The parental custody of the child’s natural parent(s) is terminated by the adoption.
First of all it should be pointed out that there Hungarian law has a speciality in this area: in case of separation the parents (or where there is no agreement the court) does not decide on the ways and extent of exercising parental custody, but on the placement of the minor child(ren).
According to Hungarian law, the legal concept of a child’s placement means a decision as to which separated parent’s household the child is to reside at, i.e. which parent shall then care for, and raise, the child on a day-by-day basis.
The child’s placement and parental custody generally coincide as Article 72 (2) of the FLA stipulates that whichever parent the child is to be placed with (either in accordance with an agreement between the parents or a judicial decision) , that parent shall have custody of the child and parental custody of the other parent (the so-called separated parent) is suspended (dormant).
It is emphasised, however, that the parent with whom the child is placed (i.e. who is granted custody of the child) does not have unlimited parental custody. The separated parent is entitled to co-decide on fundamental issues concerning the child’s future (see Section 8 for further details).
The law (Article 72/B (3) of the FLA) also allows the court to depart from the general rule with regard to the separated parent’s custodial rights when deciding on the child’s placement , eg. the court may authorise the separated parent to manage the child’s assets and act as the child’s legal representative in matters related to the child’s assets, if it is in the child’s interest.
Under Hungarian law, there are two ways of legally solving the issue of a child’s placement: pursuant to Article 72/A (1) of the FLA, the child’s placement is primarily decided by the parents. If the parents fail to come to an agreement, the court shall decide on the child’s placement.
a) (Out-of-court) agreement between the parents in respect of the placement of minor child(ren)
Hungarian law delegates the issue of the child’s placement primarily to the parents; only as a last resort, i.e. if the parents fail to reach an agreement, does it refer the decision to the court. The parents may agree verbally or in writing.
b) Resolving the child’s placement with a decree absolute
If the parents fail to reach an agreement, the placement of their minor child is decided on by the court. According to Hungarian law there are two types of court proceedings where decision on the placement of minor children may be made: lawsuit for the placement of a child(ren) , which is filed directly to solve this special issue; and matrimonial lawsuits (lawsuits for the dissolution or annulment of a marriage). In matrimonial matters the Hungarian court shall decide ex officio on the placement of any minor child(ren) of marriage (even in the absence of a petition to this end).
In whatever proceedings the placement of a child is decided upon, the court shall make its decision taking into account the child’s interest. Pursuant to Article 72/A (1) of the FLA, the court will place the child with the parent with whom its physical, intellectual and moral development is better ensured. The decision places considerable responsibility to the court, which thus must explore all circumstances concerning the child and take them into consideration when making its decision.
Nothing prevents that the issue of the child’s placement be resolved in accordance with the parents’ will even if there is litigation pending between them concerning this issue. The parents may agree on the issue of the child(ren) ’s placement at any stage of the litigation. In such cases the agreement between the parents is approved by the court’s order (see Section 5 for further details).
It is important to mention that Hungarian family law (since its reform in 1995) enables the court to order joint parental custody when making a decision with respect to a child’s placement. In such cases the settllementof the child’s placement (i.e. at which parent’s household the child is to live, and which parent is to raise and care for the child on a day-by-day basis) is separated from the issue of parental custody. Parents in such cases remain jointly entitled to parental custody, irrespective of which parent the child is placed with. With regard to the fact that joint parental custody is only “practicable” if the parents are prepared to fully co-operate and maintain a balanced relationship, Article 72 (2) of the FLA stipulates that the court can only order joint parental custody if the parents submit such a request together (or come to an agreement thereon). In such cases the parents in their joint request shall describe how they intend to co-operate in the course of exercising joint parental custody (i.e. they must present a reasonable „distribution of tasks” to the court).
As explained in Section 4 above, the parents may settle the issue of the child(ren) ’s placement in an out-of-court agreement, even during the court proceedings.
The parents’ agreement on the child(ren) ’s placement in court
Pursuant to the rules of Hungarian Code of Civil Procedure, in cases when the litigant parties partially or wholly settle their legal dispute in an agreement, their agreement is approved by a court order. The agreement approved by the court (after the court order on approval becomes definitive) has the same legal consequences as a court judgement having the force of res iudicata (e.g. substantive force, enforceablity). The court can only deny approval of the agreement if it conflicts with the law.
Accordingly, in order for an agreement made in court to become legally binding and enforceable by the state, it must meet two fundamental requirements. Firstly, the parties’ consent concerning the disputed issue on the one hand, and secondly, the court order on approval which obtains the force of res iudicata. The parties can only come to an agreement in court at the hearing; the agreement and the court order on approval are recorded at court in the court hearing minutes. In practice, if the agreement is approved by the court, the parties usually waive their right of appeal all at once at the hearing, therefore it becomes definitive immediately.
The above also applies to agreements where the litigant parties agree on the child(ren) ’s placement in court, with one important difference: when approving the agreement the court shall take into consideration the interests of the child. Accordingly the court may deny approval of the agreement on the placement of minor child(ren) on the grounds that it is clearly not in the interest of the child.
The parents’ agreement on the child(ren) ’s placement out-of-court
As mentioned above, the parents may also settle the issue of the child(ren) ’s placement not only in court proceedings but also in an out-of-court agreement. There are no formal requirements: it may be made verbally as well as in writing. At the parents’ request, the Guardianship Authority may record such agreement in minutes. The out-of-court agreement recorded in such minutes by the Guardianship Authority (as opposed to the agreement made in court and approved by a court order) is not enforceable; nevertheless, the minutes are considered as a public document and as such it may serve as important proof that an agreement was made between the parents.
If the parents cannot agree on an issue related to their joint custody right, they may request the guardianship authority to resolve their debate (Article 73 (1) of the FLA). In such cases, the guardianship authority primarily endeavours to assist the parents in coming to an agreement, failing this, it will adopt a decision on the issue itself. The procedure of the guardianship authority may be initiated by the parents upon any dispute regarding parental custody, unless the issue concerns freedom of conscience or freedom of religion (e.g. debate over the religious education of the child). These issues are regarded so private that may not be subject to either court or any other procedures.
Parents may also avail themselves of mediation in order to resolve their dispute over their parental custody right.
In the event of a dispute between parents, the court may decide on any issue related to parental custody right or the various partial rights connected thereto.
The Act stipulates only one exception to the above rule: if the parents’ dispute concerns the determination of the child’s domicile and the child is over 16 years the decision falls within the competence of the guardianship authority and not the court. (Article 73 (2) of the FLA).
This provision is related to the rule according to which minors over 16 years may leave the house of their parents (or other domicile designated by the parents) upon the permission of the guardianship authority even without the consent of the parents, if it is in their interest due to an important reason (Article 77 (2) of the FLA).
As referred to in point 4 if the parents have separated and the child is placed with one parent pursuant to either an agreement between the parents or to a judicial decision, then this parent exercises parental custody and the custody rights of the other parent (separated parent) is suspended (dormant).
However, by no means does it follow that the parent with whom the child is placed has exclusive and unlimited parental custody. Pursuant to Article 72/B of the FLA, the parents shall in any case decide jointly in any fundamental issues concerning the child’s future. Fundamental issues concerning the child’s future include:
determining the name of the child;
changing the name of the child;
determining the residence of the child;
determining the school and career of the child.
Accordingly, the separated parent must be involved in any decisions concerning issues related to the most critical aspects of the child’s life, irrespective of his/her parental custody in respect of other issues being suspended (dormant).
Pursuant to these rules, the parents’ joint decision is required e.g. to enrol the child with a particular school; the parents shall also apply jointly to the competent authority to formally change the child’s name. The Hungarian law also regards the determination of the child’s residence as a critical issue concerning the child’s future. However in practice it does not mean that if the parent wishes to change his/her residence together with the child residing with him/her, he/she shall apply for the consent of the separated parent. The consent of the separated parent is not required if the custodial parent moves to another place with the child whether within the same town or to another part of the country. Neither is the consent of the separated parent required if the custodial parent intends to take the child out of the country for a short period of time (e.g. for a holiday). In practice, the consent of the separated parent is required if the custodial parent intends to take the child abroad for good or on a permanent basis, i.e. for a period exceeding one year. The declaration of the separated parent may be replaced by a judicial decision.
It is noted (as already mentioned in point 4) that the court may also grant the separated parent further partial rights ensuing from parental custody if the interest of the child so requires; in particular the court may appoint the separated parent to manage the child’s assets and act as the child’s legal representative in matters related to the child’s assets.
Suits related to parental custody and placement of children fall within the competence of local courts.
The suit may be initiated with the courts that
have general competence in all types of civil proceedings pursuant to Article 29 of the Code of Civil Proceedings.
General competence is based on the defendant’s domicile (or, in the absence of this, his/her residence). (If the defendant has no and has never had domicile or residence in Hungary, jurisdiction will exceptionally be based on the plaintiff’s domicile or residence in Hungary) ;
competent at the child’s domicile (pursuant to the rule of special competence set forth in Article 34 (2) of the Code of Civil Proceedings).
Either parent may file the suit, and the claim shall be submitted against the other parent. The prosecutor or the guardianship authority may also initiate a suit in the interest of the child; in such cases the defendant may either be one or both parents, depending on the circumstances of the case.
Legal representation (i.e. the involvement of a lawyer) is not mandatory.
The petition shall be submitted in writing; however, the plaintiff (if he or she has no legal representative) may also have the petition entered in a record at any local court. In the latter case, the court having taken down the record shall transfer it to the court competent for the proceeding.
The petition must primarily contain the data generally required by law (Article 121 of the Code of Civil Proceedings) in all types of suits commenced at civil courts, namely:
the name of the proceeding court;
the name and domicile of the parties, as well as their status in the suit (“defendant” or “plaintiff”) , and the name and domicile of their legal representatives, if any;
the right intended to be asserted by the plaintiff in its petition (e.g., dissolution of marriage or annulment of marriage) , together with the facts and evidence supporting such right;
the data for establishing competence of the court
firm petition towards a court decision.
In addition to the general requisites listed above, in suits relating to parental custody or the placement of the child, the petition shall also contain the following data:
exact particulars of the child (name, date of birth, place of birth) ;
data on any court decision made previously regarding the child’s placement or the exercise of parental custody; the name of the court having made such decision and the date of the decision;
the birth certificate of the child shall also be attached to the petition.
In the course of the suit, the court shall hear both parents, and when it is justified the child shall be heard as well, either directly or with the help of an expert (child psychologist). If the child has passed 14 years, decision on his/her placement is subject to the consent of the child, unless the placement chosen by the child jeopardises his development (Article 74 of FLA).
The general rules of procedure have been described in point 9 above.
In Hungarian law there is no specific emergency procedure. However, in suits related to parental custody (placement of the child) courts may apply temporary measures ex officio (i.e. in the absence of a request of the parties to this effect) , thus, it may adopt a temporary decision to be in effect until the definitive conclusion of the suit, on placing the child under the custody of one of the parents or on how the child and the separated parent may maintain contact. Pursuant to Article 156 of the Code on Civil Proceedings, the court makes its decision on a temporary measure expeditiously, after hearing the parties. Temporary measures may be provisionally enforced regardless of an appeal.
In Hungary suits related to parental custody or the child’s placement belong to the category of suits with so-called subject-matter exemption from costs. This means that the parties – regardless of assets and income – need not advance in the course of the proceedings either the filing fees or other costs that may occur (e.g. reimbursements for witnesses, experts’ fees, etc.) nor do they have to bear the charges in the event they lose the case.
Court decisions on parental custody (child’s placement) are subject to an appeal, in compliance with the general rules of civil procedure. The deadline for submitting the appeal is fifteen days after the decision was notified. Appeals shall be submitted to the court having proceeded in the first instance.
Pursuant to Act LIII of 1994 on the Enforcement of Court Decisions, enforcement of the decision on parental custody (the child’s placement) may be requested at the court having issued the definitive decision. The court will order enforcement by way of issuing a so-called enforceable document. This enforceable document is served by the court on the parties as well as on the bailiff competent at the obligor’s domicile. In the enforceable document the court, setting an appropriate deadline, orders the obligor to voluntarily comply with the decision (i.e. to hand over the child).
Simultaneously, the court also serves the enforceable document on the competent guardianship authority with the request of assisting, as far as possible, the voluntary fulfilment of the obligation set forth in the decision. The guardianship authority shall inform the court on the results of its measures within 15 days.
Should the obligor fail to comply with the decision voluntarily (i.e. still refuses to hand over the child) the bailiff enforces the decision. If necessary, the handing over of the child may also be enforced with the involvement of the police, with the involvement of the guardianship authority.
In Hungary, recognition and enforcement of a court decision of an EU Member State takes place in accordance the rules set forth in Council Regulation No. 1347/2000/EC of May 29, 2000 (“Brussels II Regulation”). The procedure varies depending on whether the decision made in another Member State requires merely recognition in Hungary, or it needs to be enforced by a court procedure.
a) Recognition of a decision made in another Member State
Pursuant to Article 14 (1) of the Brussels II Regulation, recognition of a court decision on parental custody adopted in an EU Member State requires in Hungary no further (either court or administrative) procedure; the legal consequences shall be recognised in Hungary ipso iure. Existence of the conditions for recognition is examined by the court or other authority (e.g. guardianship authority) which conducts the proceedings where the issue of recognition is raised.However, it is also possible for the interested party to commence a special court procedure – in compliance with Article 14 (3) of the Brussels II Regulation – to establish whether a court decision on parental custody made in another EU Member State may be recognised in Hungary
primarily, the local court operating at the county court seat at the Hungarian domicile or habitual residence of the adverse party (in the case of Budapest, the Buda Central District Court) ;
if the adverse party has neither domicile nor habitual residence in Hungary, the local court operating at the county court seat competent at the Hungarian domicile or habitual residence of the petitioner (in the case of Budapest, the Buda Central District Court) ;
if neither the petitioner nor the adverse party has domicile or habitual residence in Hungary, the petition may be submitted to the Buda Central District Court.
b) Enforcement of a decision made in another Member State
A decision on parental custody made in an EU Member State may be enforced in Hungary in compliance with Articles 21–31 of the Brussels II Regulation. Accordingly, such decisions may be enforced upon being declared enforceable by the competent Hungarian court.
In compliance with Article 22 (2) of the Brussels II Regulation, the procedure for the declaration of a decision enforceable (exequatur procedure) falls within the competence of the local court competent at the habitual residence of the obligor or the child (or, in the territory of Budapest, of the Buda Central District Court). The court decides without notifying the obligor of the procedure, or hearing the obligor or providing the obligor an opportunity for defence.
Both the obligor and the party requesting enforcement may appeal the decision. Appeals fall within the competence of the county court (or, in the territory of Budapest, of the Capital Court). The decision of the court of second instance is definitive.
Legal remedies are still available against the decision of the court of second instance, by way of a request for revision to be adjudicated by the Supreme Court. However, the request for revision has no delaying effect on enforcement.
As the decision made in an exequatur procedure becomes definitive, enforcement is ordered and executed in accordance what is outlined in point 13.
As it has been detailed in subsection 14 a) , in compliance with Article 14 (3) of the Brussels II Regulation, the interested party may initiate a separate court procedure to establish whether a court decision on parental custody made in another EU Member State may be recognised in Hungary. The same court procedure may be filed for a negative decision. Thus, the party opposing recognition in Hungary of a court decision on parental custody made in another EU Member State, for any ground for refusal specified in Article 15 (1) of the Brussels II Regulation, may commence a court procedure requesting the court to establish that the decision cannot be recognised in Hungary. The petition for such negative decision may be filed at the same courts listed in subsection 14 a) above.
If the enforcement of a court decision on parental custody made in another EU Member State is requested in Hungary, the party opposing the enforcement of the decision may present his or her defence in an exequatur procedure (see subpoint 14 b) ). Accordingly, the opposing party may submit an appeal against the decision of the Hungarian court declaring a court decision on parental custody made in another EU Member State enforceable (Article 26 of the Brussels II Regulation) ; furthermore, the opposing party may resort to additional legal remedy against the court decision made on the basis of the appeal, by way of a request for revision (Article 27 of the Brussels II Regulation).
Last update: 24-03-2005