Q: Now that we are divorced… who will take care of the children? What about questions of international and Belgian law?
After examining, in our previous columns, the divorce in itself, and all its international aspects, the next step is, in most of the divorce proceedings, the children’s custody.
Who will take care of them is, most of the time, at the height of the conflict between the forever-to-be parents and in the meantime ex-spouses.
1. In the European Union, due to European Regulation 2201/2003, the question of the custody on the children (parental responsibility in "European" language) is addressed by the court of the Member State in which the child is habitually resident at the time the court is seized , that means at the date the demand on the child custody is initiated. (art. 8 of the Regulation).
This question of habitual residence will be checked by the court and is more than simple registration in the country. Proof must be adduced that the children have links with the Member State in which they are registered. For example, it will have to be demonstrated that the children attend a school located in the Member State, take part in extra-curricular activities in the Member State, have their friends there, and that the aim of the parents was to settle, if not definitively, at least for a certain period of time, in this State.
There are exceptions to this rule. In the case of international child abduction, said abduction never can be the justification of a new habitual residence for the child. Therefore, the Courts of the Member State where the child was habitually resident immediately before the wrongful removal shall retain their jurisdiction (art. 10) until the removal has been made legal by a judicial confirmation.
The Courts of a Member State that have jurisdiction for divorce can also have jurisdiction for parental responsibility, even if the child is not habitually resident in this Member State, but this is only possible at the condition that both parents agree on this jurisdiction. If not, the general principle will be applicable (i.e. habitual residence of the child).
There are also other criteria that can lead to jurisdiction for a Member State. In particular, in case of emergency, the courts of a Member State can take provisional, including protective, measures in respect of children that may be available under the law of that Member State, even if the courts of another Member State have jurisdiction in this matter.
2. Once it is determined in which country the courts will have jurisdiction (be careful, it sometimes can be another country than the one that had jurisdiction for the divorce, see above), the question of the applicable law will be raised.
As there is no European regulation on the law that is applicable to the question of the custody on children, this question is ruled before Belgian courts by the Belgian Code de droit international privé.
According to this law, the question of parental responsibility is ruled by the law of the State on which the child has his habitual residence at the moment the parental responsibility is claimed by one of the parents.
The criterion is the same as the one used for the international jurisdiction, in order to have as much coherence as possible in the application of the law, by the courts that know it best.
This means that if the children have their habitual residence in Belgium at the time of the separation, Belgian courts will have jurisdiction to decide with whom they will live and, to in doing so, they will apply Belgian law.
3. It should be known that in Belgium, since a 2006 act came into force, if there is no agreement between the parents on the child custody, courts have to examine inmust give priority the possibility to orderin any order to joint custody in an egalitarian base (50/50 time split) between both of the parents.
Courts can only deviate from this joint custody if they consider it is not in the best interest of the child, and they have to justify it very precisely in the judgment.
The next question to be raised is the one of the child support, which we will examine in an upcoming column.
Arnaud Gillard is an attorney at BDCG and is a member of the Brussels bar.
The contents of this column are not intended to serve as legal advice related to any individual situation. This material is made available for informational purposes only.
