Around divorce cases Many myths and misconceptions circulate. Some of them are so common that divorcing people often believe them and take them for granted. However, most of these myths are not backed up by the law and it is therefore important to clarify these issues before taking on a the decision to divorce. In this post, I will try to dispel the 5 most common myths associated with the parental authority and contacts with children.

MYTH 1 - AFTER DIVORCE, ONLY THE MOTHER HAS FULL PARENTAL RESPONSIBILITY

This is one of the most frequently repeated myths that is not supported by the legislation. The fact is that parental authority is more often restricted to fathers than to mothers, but this is not because the legislation favours women. In most of the cases I have had the opportunity to handle, the father of the children has agreed to the children living with their mother and therefore also to the limitation of parental authority. Living apart, it is difficult for parents to make decisions about their children together, especially if they live far away from each other.
If there is a clear lack on the part of either parent competences to exercise parental authority, the court will also limit it, whether it is the father or the mother. The father of the child can also successfully fight for full parental authority if the mother is unable to exercise it. I know from my own experience that this is possible.

MYTH 2 - A PARENT WHO DOES NOT PAY MAINTENANCE HAS NO RIGHT OF ACCESS TO THE CHILD

I very often come across a situation in which parent comes forward to ask whether it is true that as will not pay alimony, it is the other parent who can prevent him or her from having contact with the children. Of course, this is not the case; the parent with whom the children are living cannot punish the other parent for non-payment of alimony in such a way as to prohibit him from seeing children. A parent to whom contacts are hindered may assert its rights through the courts. In contrast, maintenance should be sought by bailiff, if the liable parent does not pay them voluntarily.

MYTH 3 - TERMINATION OF PARENTAL AUTHORITY MEANS PROHIBITION OF CONTACT WITH THE CHILD

There is a misconception that parental authority i contacts is the same thing. Meanwhile, analysing the provisions of the Family and Guardianship Code, we can distinguish three attributes of parental authority: custody of the child, administration of the child's property and representation of the child. Parent deprived of parental authority cannot have custody of the child, decide on the child's assets or represent the child in any actions (e.g. in court or at the notary). The right to maintain contact with the child is not an element of parental authority. In the event of termination of parental authority, parents continue to have right to personal access to the child (cf. the resolution of the Supreme Court of 8 September 2004, ref. no. IV CK 615/03, publ. LEX).

MYTH 4 - IF A PARENT OBSTRUCTS CONTACT THEN THE POLICE CAN TAKE THE CHILD AWAY BY FORCE

If the court has determined parent-child contact, It is the responsibility of the other parent to prepare the child adequately for these contacts and to deliver the child on the agreed day. Unfortunately, it is not uncommon for no one to open the door on the day of the visit, even though you can hear that someone is inside. The first thought of an upset parent is to call the police to they took the child away. This is not the best idea, as the Police do not have the power to forcibly collect a child and hand him over to a person entitled to contact with him. Contact can be enforced, but this is done through the courts. Proceedings in enforcement of contacts takes place in two stages. The first stage consists of the court threatening to order payment of the sum of money by the parent who obstructs contact. The second stage depends on whether the violations continue and consists of ordering the payment of the sum previously threatened. The amount ordered is payable to the parent entitled to contact.

MYTH 5 - A CHILD MUST CHOOSE WHICH PARENT HE OR SHE WANTS TO LIVE WITH AFTER DIVORCE

Children do not make a decision on which parent they want to live with, as they residence of the minor depends primarily on the resolution of the issue of parental authority. If an agreement can be reached between the parents as to the child's place of residence and this agreement is consistent with the the welfare of the child, then the court will take them into account. On the other hand, in the absence of agreement, it will be up to the court to decide which parent to entrust to custody, based on his or her best interests. The court may take into account the preferences of a minor child, but only of a child who is mature enough to form his or her own opinion and wishes. It is for the court to assess the child's opinion and wishes and should take into account the totality of the circumstances of each case.

If you have additional questions about the myths mentioned or have heard of other “facts” about parent-child contact or parental authority contact me!

If you would like to find out what myths are circulating about alimony, visit the website of Ms Marta Lampart, who discussed these issues on her blog.