Greater distance between the homes of divorced parents: which parent should bear the financial and time costs of contact with the child?
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After a divorce, there are often situations where the parent who has been given custody of the child moves to a new residence, even hundreds of kilometres away from the original residence where the other parent lives. The question then arises as to how to ensure contact between the other parent and the child at such a distance between the two homes. And who should bear the cost of the commute?
According to a new ruling of the Constitutional Court of 2 September 2020 (Case No. IV.ÚS 4156/19), the costs of contact cannot be borne by only one of the parents. In order to evenly balance the obstacles to the child's contact with the parent at a greater distance, it is necessary for those obstacles to be partly transferred to the parent to whom the child has been entrusted.
In the present case, the minor child was entrusted to the mother's sole care and the father was given access to the minor child every third week from Friday to Sunday. The mother moved with the child from her original residence to a new residence almost 300 km away. The father therefore had to travel almost 8 hours each time to pick up the minor and take him to his home in order to have contact. He had to do the same when the contact ended, when he had to return the minor to his mother's place of residence. In order for the father to have contact with the minor, the father had to travel over 1 000 km over the weekend and spend around 18 hours in the car, which is demanding not only in terms of time and money, but also physically and psychologically. The father therefore requested in the proceedings that the mother should also be obliged to participate in the implementation of the contact, by being obliged to bring the minor to the contact every other contact in her private motor vehicle and to pick up the minor at the father's place of residence at the end of the contact, with both parents taking turns.
The Constitutional Court upheld the father's complaint, stating as follows: "thegreater distance between the residence of the child's parents cannot, in standard circumstances, be attributable to only one of them and cannot be a reason for violating the child's right to have access to both parents and at the same time violating the right of one of the parents to have access to the child." Moreover, travelling a long distance to have contact reduces the scope of contact between parent and child, which is a direct interference with the rights of the parent protected by Article 32(4) of the Charter and with the rights of the minor child under Article 3(1) of the Convention in conjunction with Article 32(4) of the Charter. It is not only the financial aspect of the matter (e.g. fuel for mileage) that is at stake, but also the energy and time expended. Anyone can imagine spending more quality time with their child than a journey of several hours by car or public transport.
In practice, this means that, when deciding how to regulate access between parents and their children, the general courts should take such situations into account and regulate access between parents and their children in the case of longer distances in such a way that the implementation of access does not impose an unreasonable burden on the parents and, in particular, on the child.
A possible solution, which the Constitutional Court outlined in the present case, would be, for example, a situation where the father takes the child at the mother's place of residence and, on the contrary, the mother takes the child at the father's place of residence after the end of contact with the father. In that way, each parent makes one journey and the difficulties and costs involved are borne equally by both parents. This scenario applies both in the case of alternate custody and in the case of sole custody of only one parent. From a moral and human point of view, it is therefore at least appropriate for the parents to share equally the journey to ensure normal contact with the child.
If you are dealing with problems in connection with the implementation of access to minor children or are interested in other legal advice in the field of family law, please do not hesitate to contact us.