Contact with a child after divorce: how arrangements are set

A dispute over contact arrangements is the hardest of all family disputes, because there is no property in it that can be split down the middle. Here is how it works procedurally and what really affects the outcome.

Agreement or court

Parents may enter into a written agreement on how parental rights are to be exercised. Notarial form is not compulsory, but a notarised agreement is more disciplining and easier to rely on.

If no agreement can be reached, the dispute is decided by the court, with the mandatory participation of the guardianship and trusteeship authority. The case is heard by the district court at the respondent's place of residence.

Until the dispute is resolved, the court may set temporary contact arrangements. That is an important tool where a parent has been kept away from the child for months.

What the court assesses

The law refers to taking into account the child's age, the child's attachment to each parent, the parents' moral qualities, the relationship between each parent and the child, and the ability to create conditions for the child's upbringing and development.

In practice this breaks down into concrete questions: where the child lives and goes to school, what the daily routine is, how long the journey to the other parent takes, whether that parent has a separate bed and suitable conditions, and how the parents behave towards each other in front of the child.

The child's own view must be taken into account from the age of ten, and in fact the court hears the child earlier than that, through the guardianship authority's report and expert evidence.

The guardianship authority

The guardianship authority inspects the living conditions at both parents' homes and issues a report. The inspection report is a document everyone reads.

It is worth preparing for the visit not with showy tidiness but with the obvious things: a separate place to sleep and to study, the child's clothes, toys, food, a first aid kit. Questions are put both to the child and to the parent, about routine, clubs and doctors.

The guardianship authority's report does not bind the court, but departing from it requires reasons, so its weight is considerable.

Expert evidence

In difficult cases a combined psychological and psychiatric examination is ordered. It answers questions about the child's attachment, the influence of each parent, and whether there are signs that a negative attitude to one of them is being formed.

This examination is the main tool in cases involving the alienation of a child from one parent. It is also the most vulnerable part: quality depends on the expert institution, and the timescales stretch into months.

What the court usually orders

A typical arrangement for a pre-school or primary-school-age child: contact on set days of the week with specified times, every second weekend with or without an overnight stay, part of the school holidays, alternating public holidays and daily video calls at an agreed time.

The younger the child, the more cautious the court is about overnight stays and long journeys. The older the child, the more its own schedule is taken into account: school, clubs, friends.

Travel abroad and the issue of the child's documents are dealt with separately.

If the order is not complied with

First, keep a record. Every missed contact day is documented: arriving at the address, calling the local police officer, a written complaint, correspondence.

Second, enforcement proceedings. The bailiff may apply administrative liability for non-compliance and then move to enforced compliance with a psychologist and the guardianship authority taking part.

Third, the last resort: an application to transfer the child to the other parent. The court may do this where there is persistent failure to comply with the order, provided this is not contrary to the child's interests.

What not to do

Do not film the child answering questions about the other parent and bring that to court: it is treated as drawing the child into the conflict and works against the person who made the recording.

Do not take the child without permission outside the agreed arrangements. Do not discuss the dispute in front of the child or tell the child what was said at the hearings.

And do not turn the proceedings into a way of continuing the relationship with a former spouse. It is visible from the outside, and the court sees it too.

This material is for information only and is not a substitute for advice on a specific case.

If you are being kept away from your child, or you need clear contact arrangements put in place, write to us. The first consultation is free of charge where an engagement agreement is signed.

Marianna Dzyuba — advocate at the Mariupol office of the Kovalev, Malyutov, Tsypkalo & Partners Bar Association