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Parental conflict regarding parental responsibility, custody and access to the child

After a relationship break up, parents may struggle to solve issues regarding parental responsibility, custody and right of access to their child. For more information, see our example of a child custody agreement here.

Differing views on what will be in the child’s best interest, are not uncommon. If the parents are unable to reach an agreement, it might be necessary to have the issues settled in court. We have long experience assisting parents through court proceedings. Parental conflicts are emotional and involve difficult relationship issues, and a counsel will be able to assist in focusing on the legal issues.

Parental responsibility, custody and right of access to a child is regulated in the Act relating to Children and Parents (Children’s Act) and the UN Convention on the Rights of the Child. The best interests of the child shall be a primary consideration in all decisions that involve children. Children must be allowed the opportunity to be heard in all cases that concern them. Pursuant to Article 104 of the Norwegian Constitution, children have the right to be heard in matters relating to them, and their opinion should be given importance in accordance with their age and development.

1. Parental responsibility

Questions regarding parental responsibility may arise when a child is born, a relationship is broken up, or owing to bereavement.

Parents who are married have joint parental responsibility for children of this relationship, according to Children’s Act Section 34. Parents who are married cannot decide on sole parental responsibility.

Cohabiting parents have joint parental responsibility. In principle, parents who do not live together also have joint parental responsibility, but both parents may give notification of sole parental responsibility to the National Population Register within one year after the paternity has been established, cf. Section 35.

Parents who move apart, separate or divorce, may agree to have joint parental responsibility or that one of them shall have sole parental responsibility. Until an agreement or decision on parental responsibility has been made, the parents have joint responsibility.

If the parents do not agree on whether sole or joint parental responsibility will be in the child’s best interest, the issue must be settled in court. If the parents have lived together or have had joint parental responsibility, the court will rule for joint parental responsibility, unless “special reasons” indicate that it will be in the child’s best interest to give sole parental responsibility to the resident parent. The assessment is whether the parents will be able to co-operate to a certain extent, or if joint parental responsibility will cause harmful conflict about the child, and to which extent care is reduced because of the need for co-operation between the primary care provider and the other parent.

Parental responsibility involves decisions of passport, moving abroad, medical treatment, the child’s name, denomination, private school and adoption.

When parents have joint parental responsibility, they must agree on all decisions subject to parental responsibility. The parents cannot divide the decisions between the two of them. Furthermore, it is not possible to raise individual issues subject to parental responsibility in court, except if one of the parents wants to move abroad with the child, see Section 56.

2. Custody – sole and joint custody

The parents may jointly decide that the child shall reside either with both of them (joint custody) or with one of them (sole custody), see Section 36.

If the parents fail to agree, the court must decide that one of the parents shall have custody of the child. The decision shall be in the child’s best interest, cf. Section 48 and the Convention Art. 3. Relevant elements for this consideration are the child’s attachment to the parents and contact with the parents, the child’s opinion, which of the parents that will provide better contact with the other parent, personal characteristics, opportunity to spend time with the child, risk entailed of environmental change etc.

When there are special reasons for doing so, the court may nonetheless decide that both parents shall have custody of the child. The court must be convinced that it is in the child’s best interest that the parents have joint custody, based on elements such as whether the parents trust each other as care providers, low conflict, whether there is an open dialogue regarding the child’s daily doings, living geographically close to each other and to which extent they, when needed, are flexible finding new solutions for the child and family.

If the parents have joint parental responsibility, but only one of the parents has custody of the child, the other parent may not object to the parent with sole custody of the child making decisions concerning important aspects of the child’s care, such as the question of whether the child shall attend a day-care centre, where in Norway the child shall live and other major decisions concerning everyday life, like registration for leisure activities. It is not required that the child spends equal amounts of time with both parents to have shared custody, but the child must spend a lot of time with both parents as the competence of custody presupposes that one has in-depth knowledge of the child’s daily life.

3. Right of access to the child

The child has right of access to both parents even if they live apart. The parents have mutual responsibility for implementing the right of access, cf. Section 42. Chapter 13 of the Enforcement Act applies to the enforcement of decisions and other special grounds for enforcement relating to parental responsibility, custody and right of access.

The parent who is with the child may take decisions concerning the care of the child during visitation.

The parents themselves shall agree on the extent of visitations based on what they consider to be in the best interest of the child. In any agreement or decision regarding right of access, among other factors, importance must be attached to ensuring the best possible overall contact between the child and his or her parents, the age of the child, the child’s opinion, the degree to which the child is attached to the local neighbourhood, the distance that must be travelled between the parents, and the child’s interests in all other respects, cf. Section 43.

When making such decisions, regard shall be paid to ensuring that the child is not subjected to violence or in any other way treated in such a manner as to impair or endanger his or her physical or mental health. If such access is not in the best interest of the child, the court must decide that there shall be no access.

Conditions for access may be imposed in agreements or in judgments, such as drug tests, treatment, anger management programmes etc. If supervision is made a condition, the court may appoint a person to perform supervision during visitation or request the parents to appoint such a person. If supervision is made a condition for access, the court may in special circumstances, and where regard for the needs of the child so dictates, require the municipal child welfare services or the Ministry to appoint a person to perform supervision during visitation. The court may order protected supervision or supported supervision. Such an order shall provide the necessary conditions for access, and leave no uncertainty of implementation, including number of visitation hours per year and duration of the conditional access.

4. When will the Norwegian Children’s Act have effect?

An increasing number of families have connection to several countries. Norway has acceded to the Nordic family convention of 1931, the Hague Convention, and is party to the Lugano Convention. The conventions may set limits for Norwegian jurisdiction and choice of law in the cases covered by the conventions and oblige Norwegian authorities to recognize and enforce foreign decisions.

Cases regarding parental responsibility, international relocation with the child, custody or access may be dealt with by a Norwegian court and are under Norwegian jurisdiction if the child is habitually resident in Norway. As a starting point, a person’s usual place of residence will be where the person, after an overall assessment, has the centre of his or her life interests and for how long he or she has stayed in the State.

A case regarding an interim decision may be dealt with by a Norwegian court in all cases where the child is present in Norway, see Section 82.

Child abduction is regulated by Hague Convention, Art. 7. If the country where the child has habitual residence has acceded to the convention, Norway remains jurisdiction if

  • the parent who has parental responsibility has acquiesced in the removal or retention, or
  • the child has lived in the other State for a period of at least a year after the parent got knowledge of the whereabouts of the child, and
  • the parent has not lodged any request for the child’s return, or
  • a request made within the period is not still pending, and
  • the child is settled in his or her new environment.

5. Court proceedings

If the parents disagree on who is to have parental responsibility, custody or access, either of them may bring an action to the courts. A condition for bringing in such an action is that the parents must present a valid mediation certificate. The family counselling offices conduct statutory mediation.

The objective of mediation is for the parents to arrive at an agreement on parental responsibility, permanent custody and visitation rights.

If it is necessary to bring an action before the courts, the court shall, as a general rule, summon the parties to one or more preparatory meetings, among other things to clarify the points of dispute between them, to discuss the further handling of the case and to mediate between the parties, if relevant. The court may appoint an expert to attend the preparatory meetings, cf. Section 61 No. 1.

The court may also give the parties the opportunity to try out an interim agreement for a specified period of time, cf. Section 61. No. 7. The court may appoint an expert or other suitable person to advise the parents during the trial period.

When necessary, the court shall appoint an expert to express an opinion on one or more of the questions raised by the case. Where allegations have been made concerning violence, abuse, drug or alcohol abuse or mental disorder, and sufficient information concerning the case has not otherwise been provided, the court may appoint an expert, cf. Section 61 No. 3.

The court may schedule the main hearing immediately or after one or more of these measures have been implemented.

Ann Kathrin Nordbø

Forfatter Ann Kathrin Nordbø

Senioradvokat E-post: nordbo@dalan.no Telefon: 920 87 511

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