Parent's right of custody and changes in right of custody

Parent's Right of Custody
and Changes in Right of
Custody
Claudius Law Office Estonia
2016

Legal effect of filiation
 The mutual rights and obligations of
parents and children arise from the
filiation of children which is ascertained
pursuant to procedure provided by law

General legal relationship between
parents and children
 A parent and a child are required to support
and respect each other and take each other's
interests and rights into account
 Until a child resides together with his or her
parents and the parents raise or maintain
him or her, the child is required to assist his
or her parents in household in accordance
with his or her abilities and possibilities

Principles of parent's right of
custody
 Parents have equal rights and obligations
with respect to their children unless
otherwise provided by law
 Upon caring for and raising a child, the
parents shall take into account that the
ability and need of the child to act
independently and the responsibly of the
child increases; if the development level of a
child so allows, the parents shall discuss the
caring and raising issues with the child

Parent who is granted right of
custody
 The parents who are married to each other have joint
custody over their child.
 If the parents of a child are not married to each other
at the time of birth of the child, they shall have joint
right of custody unless they have expressed their
wish to leave the right of custody only to one of the
parents upon submitting the declarations of intention
concerning the acknowledgement of paternity.
 A parent's right of custody does not apply to matters
relating to a child for which a special guardian has
been appointed and in court cases where another
representative has been appointed.

Right of custody of parent with
restricted active legal capacity
 A parent with restricted active legal capacity
does not have the right to represent a child
and shall exercise the right of custody over
person with respect to a child together with
the legal representative of the child.
 If the guardian or special guardian is the
legal representative of the child, the opinion
of the parent shall be preferred in the case of
divergent opinions between the parent and
the representative.

Exercise of parent's right of
custody
 Parents shall exercise joint right of custody with
respect to their child and perform the custodial
obligation on their own responsibility and
unanimously considering all-round well-being
of the child.
 If it is not possible for the parents to exercise the
right of custody, a court shall apply the relevant
measures in the interests of the child. If
necessary, a court shall commence proceedings
for appointment of a guardian with respect to
the child.

Custody over minor with extended
active legal capacity
 If the active legal capacity of a minor has
been extended, a parent's right of custody
does not apply in the case of acts which
the minor is permitted to perform
independently.

Parent's right of custody
Parents have the obligation and right to care
for their minor child – right of custody
Right of custody:
 custody over person
 custody over property
 right to decide on matters related to the child

Right of custody over person
Right of custody over person – the right
to care for the person of the child, the
obligation and right to:
 raise a child
 exercise supervision over the child
 ascertain the whereabouts of the child
 take care of the all-round well-being of
the child in any other manner

Right of custody over person
Requirement for surrender of child and
determining access to child –
 the right to require surrender of a child from
anyone who keeps a child unlawfully against his
or her parent's will.
 the right to appoint the third persons who can
have access to the child. A decision of a parent is
binding on third persons whose access to the
child has been prohibited by the parent.
NB! The other parent is not a third person!

The right of custody over property
The right of custody over property –
the right to care for the property of the
child, the right and obligation to:
 administer the property of the child
and, inter alia, represent the child (this
does not preclude the right of the child to
administer his or her property
independently in the cases provided by
law)

The right of custody over property does not apply
in the case of property acquired by a child:
 by succession or as a gift if the bequeather or
donor has specified that the property shall not be
administered by one or neither of the parent
 on the basis of a right included in the property
specified or as compensation or in return of the
transfer of, destruction of, damage to or seizure
of objects included in such property

 parents shall administer the property
acquired by their child by succession or as
a gift in adherence to the instructions of
the person from whom the property was
acquired
 parents may deviate from the instructions
if adherence thereto may damage the
interests of the child

Prohibition on making gift and investment of
money
 parents as representatives of a child shall not give
away a child's property as a gift - as an exception, it
is permitted to make ordinary gifts in order to
perform a moral obligation or adhere to etiquette
 parents shall invest the money belonging to their
child and administered by the parents pursuant to the
principles of prudent management of property if it is
not necessary to use the money for covering the
maintenance costs of the child

Conclusion of transactions with consent of
court
 Parents shall have the consent of a court in
order to conclude certain transactions on
behalf of a child – the disposal of an
immovable or a real right in immovable
property, renunciation of succession,
acquisition of a holding in a legal person or
joining membership thereof, taking a loan,
acquisition or transfer of securities and so on.

 consent of a court is not required for
renunciation of succession if the child's right to
the estate has arisen as a result of renunciation
of succession by the parent who has the right of
representation with respect to the child
 parents shall not, without the consent of a court,
commence new business activities on behalf of a
child or transfer objects for the transfer of which
consent of a court is required to a child for the
performance of a contract entered into by the
child or for free disposal

 first the obligations incumbent on the property
which have fallen due shall be performed and
other expenses of regular management of the
property shall be covered.
 the income remaining may be used for the
maintenance of the child
 Last for the maintenance of parents themselves
and unmarried minor brothers and sisters of the
child if there are no appropriate resources for
covering the maintenance costs of the
abovementioned persons shall be covered.

Parents' obligation of care
 upon exercising the right of custody over
property of a child, parents shall exercise
such care as they would usually exercise
in their own affairs
 if both parents cause damage to a child,
they shall be liable as solidary obligors

The right of custody over property and
representation of child
Endangering of property of child
 it is presumed that a child's property is endangered if
the person exercising custody over the property
violates the obligation to provide maintenance to the
child or any other obligations relating to the right of
custody over property or fails to comply with the
directions of a court concerning the right of custody
over property
Preclusion of child maintenance claim
 a joint right of custody shall not preclude the right of
the parent raising the child to file an action against
the other parent for the order of maintenance of the
child

 a court may issue a precept to parents for the
submission of a list of a child's property and a
report concerning administration of the property
 parents shall confirm the correctness of the list
of property
 if the list is insufficient, a court may, by a ruling,
assign preparation of the list to the rural
municipality or city government

 a court may issue a precept for the investment of
a child's money in a certain manner
 a court may establish obtaining permission from
a court as a condition for withdrawal of money
If a child's property includes securities or
valuables, a court may impose the same
obligations to the parent representing the child
as rest with the guardian.

 a court may demand security from a parent damaging the
proprietary interests of a child to the extent of the value of
the property administered by the parent
 the court shall decide on the type and scope of the security
at its discretion
 a court ruling substitutes the participation of a child upon
granting and annulment of security
 only full or partial deprivation of the right of custody over
property may be imposed as a coercive measure of grant
of security

Handing over of property
 If a parent's right of custody terminates
or is suspended, he or she shall hand the
child's property over to the child and shall
submit a report concerning administration
of the property at the request of the child
or the legal representative of the child.

Powers of Decision
Powers of decision - the right to decide on matters related
to the child
 if parents who have joint right of custody are permanently
separated, they shall jointly decide on essential matters
relating to the child
 if, upon exercising joint right of custody, parents fail to
reach an agreement in a matter significant for the child, a
court may, at the request of a parent, grant powers of
decision in this matter to one parent; in this case, a court
may restrict the exercise of the powers of decision or
impose supplementary obligations on the parent exercising
the right

Powers of Decision
 deciding on everyday matters (usual care);
making usual decisions - which occur often
and which do not have a permanent effect on
the development of the child
 decisions made by a parent who has a sole
custody over the child (concerning child’s
education, residence and whereabouts, third
persons who have access to the child
matters)

Powers of Decision
 the parent who has the right of custody and
with whom a child resides with the consent of
the other parent or on the basis of a court
decision has the right to decide on everyday
matters (usual care) of the child alone
 if a child stays with the other parent with the
consent of the parent specified above or on
the basis of a court decision, the matters
concerning usual care shall be decided by the
other parent

Powers of Decision
Powers of decision of a parent without the
right of custody
 a parent without the right of custody has
powers of decision if a child stays with him or
her with the consent of the other parent or
another person who has the right of custody
or on the basis of a court decision
 a court may restrict the powers of decision of
a parent without the right of custody in the

Powers of Decision
Powers of decision of person caring for child
 if a child resides in a foster family for an
extended period of time, the person actually
caring for and raising the child (foster parent)
has the right to decide on matters concerning
usual care for the child and represent the child in
such matters
 A foster parent shall not have such right if the
person who has the right of custody objects to it
or a court has restricted or precluded the powers
of decision on matters concerning usual care.

Powers of Decision
 if a child stays at a third person on the
basis of a court decision, his or her
powers of decision on matters concerning
usual care may be restricted or precluded
only by court

Powers of Decision of a Foster
Parent
 if parents give their child to a foster family to be
cared for for a longer period of time, a court may, at
the request of the parents or the person who provides
care for the child, grant powers of decision in matters
concerning custody of the child to the person who
provides care for the child
 consent of the parents is required for transfer of the
rights at the request of the person providing care for
a child (foster parent)
 a foster parent has the rights and obligations of a
special guardian to the extent of the transferred
rights

Foster Family and (Special)
Guardianship
 foster family is a family where a child is actually
raised and which does not include a parent of the
child or a person married to a parent of the child
 guardian is the legal representative of persons
under guardianship who has the right and
obligation to care for the person and property of
the person under his or her guardianship within
the limits of his or her duties
 a guardian does not have the right of
representation or obligations in the area for
which a special guardian has been appointed

Right of Access
 a child has the right to maintain personal
contact with both parents
 both parents have the obligation and right to
maintain personal contact with their child
 right of access does not depend on the
ownership of the right of custody and is not a
part of parent’s right of custody
NB! A parent shall refrain from any action which is
harmful to the relationship between the child and
the other parent or which hinders raising of the
child. The same provision applies if a child is
cared for and raised by another person.

Right of Access
 A court may restrict the right of access or the enforcement
of the earlier decisions made concerning the right of access
or terminate the exercise of the right of access or the
enforcement of the earlier decisions made concerning the
right of access.
 a court may order that a parent has access to a child in
the presence of a suitable third person
 if the third person is a rural municipality or city
government or a legal person in private law, the rural
municipality or city government or the legal person shall
appoint a competent natural person to perform this duty

Right of Access
 A court may allow, prohibit or restrict access
of a third person to a child in the interests of
the child
 a court may impose an obligation on a person
involved to refrain from any action which is
harmful to the relationship between the child
and his or her parents or which hinders
raising of the child
 a court may apply measures also on its own
initiative

Requirement to Provide
Information
 a parent has the right to request from the
other parent information concerning
important circumstances relating to the
person and property of a child unless this
is in conflict with the child's interests

Representation of Child
 a parent who has the right of custody is the legal
representative of a child
 parents who have joint custody have a joint right
of representation
 if making a joint declaration of intention of the
parents would cause a delay in conflict with the
interests of the child, one parent has the right to
enter into necessary transactions and perform
necessary acts in the interests of the child also
alone; in this case the other parent shall be
immediately informed of the acts

 representation of child and the right of
custody have the same scope
 the representation of child has the same
restrictions as the right of custody in case
the latter being restricted

A parent represents his or her child alone
if:
 he or she has sole custody over the child,
or
 the powers of decision have been
transferred to him or her by the court
NB! If a parent represents a child
independently, consent of the other
parent is presumed.

 where a third person is required to make a declaration of
intention to a child in order to perform an act, he or she
may submit it to one parent
 parents shall not represent a child in the cases where this
is prohibited (the right of representation is precluded), for
example in transactions where one party is the ward and
the other party is the guardian, the spouse of the guardian,
a direct relative, brother or sister of the guardian (unless
the transaction concerns exclusively the performance of
obligations with respect to the ward) – Family Law
Act § 180

Representation of child after termination of
parent's right of custody
 a parent may continue administration relating to
custody over person and property until he or she
becomes aware or should become aware of the
termination of his or her right of custody
 a third person shall not rely of on the right of a
parent if upon entry into the transaction he or
she knew or should have known of termination of
the right of custody; same shall apply also upon
suspension of the parent's right of custody

Changes in the Right of Custody
 Transfer of the right of custody is not deprivation of the
right of custody (over person)! Family Law Act § 137 vs
Family Law Act § 135
 Changes in the right of custody do not interfer with being a
parent, parent’s rights and obligations remain in force (the
obligation to participate in child’s maintenance, right to
access, the right to bequeath property)
 The Family Law Act in force does not enable deprivation of
parent’s rights, changes can be made in the right of
custody
 Affiliation of the right of custody can only be changed by
court

Restriction of Parent's Right of
Custody
The physical, mental or emotional well-being or the
property of a child is endangered by:
 abuse of the parent's right of custody
 neglecting the child
 inability of the parents to perform their obligations
 conduct of a third person
 parents not wishing or being unable to prevent
danger
Court shall apply necessary measures to prevent
danger, including separation of the child from the
family and deprivation of the right of custody over
person in full.

Custody
As necessary measures, a court may:
 make decisions arising from the right of custody
in lieu of a parent
 issue warnings and precepts and impose
prohibitions
 require the parents to observe the instructions of
the agency specified by the court
 restrict the right of custody over person or
property by prohibiting the performance of
certain acts or certain type of acts
 deprive a parent of the right of custody over
property in full

Custody
When implementing the measures, the court:
 shall make a decision primarily in the
interests of the child, taking into account all
the circumstances and the legitimate interest
of the relevant persons
 must take into account the principle of
family autonomy and prefer measures,
which support the family and help to
strenghten or restore the bond between a
child and a parent

Custody
Measures
 Precepts, e.g. Parent’s alcohol consumption
may be prohibited. He or she may be
directed to alcohol or drug rehabilitation.
 A parent may be obligated to use different
support services by local authority (e.g.
preparation and adherence of a case plan,
guidance on raising a child,support person,
securing welfare worker’s help).
 Parents may become obligated to turn to a
doctor or phychologist and follow doctor’s
instructions.

Custody
Separation of child from family and deprivation of right
of custody over person in full
 A court may separate a child from the parents only if
damage to the interests of the child cannot be
prevented by other supporting measures applied in
the relationship between the parents and the child.
 A court may deprive a parent of the right of custody
over person in full only if other measures have not
yielded any results or if there is reason to presume
that the application of the measures is not sufficient
to prevent danger.

Custody
 Upon hearing a matter concerning substantial
restriction or deprivation of the right of custody over
person in full, a court shall include a rural
municipality or city government in the proceedings for
the purpose of hearing its opinion.
 If leaving a child in his or her family endangers the
health or life of the child, a rural municipality
government or city government or the Social
Insurance Board may separate the child from the
family before a court ruling is made. In such case
the rural municipality government or city government
shall promptly submit a petition to a court for
restriction of parent’s rights with respect to the child.

Suspension of parent's right of
custody
 A court shall suspend a parent's right of
custody in the case of extended inability of
the parent to exercise the right of custody.
 The right of custody remains during the
suspension but a parent shall not exercise
the right of custody during the suspension.
 If parents have joint right of custody and the
right of custody of one parent is suspended,
the other parent shall exercise the right of
custody alone.

Suspension of parent's right of
custody
 A court shall suspend a parent’s right of
custody in the case of extended inability
of the parent to exercise the right of
custody
 In case of long term absence of a parent
or in case of another uninvolved obstacle
 In case of imprisonment, serious illness or
if a parent is missing

Termination of joint right of
custody
 Partial transfer of right of custody to one of
the parents (inc. powers of decision in some
matters to one of the parents. In other
matters retaining the joint right of custody) –
Family Law Act § 119, § 137 lg 1
 Fully transferring the right of the custody to
one parent (sole custody) – Family Law Act
§ 137 lg 1

custody
Sole right of custody is given to one of the
parents usually in these cases:
 the other parent has not participated in childs
life and shows no interest
 the other parent agrees with it (compromise)
 tension between the parents – fulfillment of
joint custody is difficult and parents fail to
reach agreement in fulfilling right of custody

Partial termination of the joint
right of custody
Determination of the residence of a child
 Since 1.july 2010 it is not possible to submit a
claim for determing the recidence of a child and
the court cannot accept these kinds of claims.
 It is possible to claim partial or sole right of
custody, inc. the trasfer of powers of decision.
Court can decide only on the right of custody or
apply measures to ensure the childs well-being.
Determing the residence of the child is part of
fulfilling the right of custody.

Fully terminating the joint right of
custody
Determination of the residence of a child
 The court does not have to determine the
residence of a child if according to the judicial
decision, one of the parents gets the sole right of
custody
 The fact that a parent has the sole right of
custody (or for example right of custody/powers
of desicion in determing the residence of the
child), gives the parent the right to ascertain the
whereabouts and the place of residence of the
child

custody
The petition shall be dismissed if:
 a child who has attained at least 14 years
of age objects to the transfer of the right
of custody
 There is a reason to believe that
termination of the joint right of custody
and granting sole right of custody to
petitioner does not correspond to the

custody
In the case of termination of the joint right of
custody, a court shall decide on the grant of
the right of custody to one parent on the basis
of the interests of the child and shall take into
account:
 Mental and financial readiness of each parent
to raise the child
 Emotional relationship with the child and
current commitment to caring for the child
 The future living conditions of the child

Restoring the right of custody
In some cases it is possbile to restore the right of custody –
Family Law Act 123¹:
 In the case of changes in the right of custody, a parent's
right of custody shall be restored on the basis of a parent's
application if restoration of the parent's right of custody
corresponds to the interests of the child.
 In the case of restriction of the right of custody, application
of measures restricting the right of custody shall be
terminated and a parent's right of custody shall be restored
on the basis of a parent's application if the interests of the
child are no longer in danger.
 A parent has the right to request from a court in
proceedings on petition that the right of custody belong
jointly to the parents.

Also in these cases:
 A court shall restore a parent’s right of
custody if it is established that the grounds
for suspension have ceased to exist.
 A court shall amend a decision made earlier if
this is required due to significant
circumstances which affect permanently the
well-being of a child.

 If the sole right of custody over a child
granted to a parent on the basis of law or
a court decision is suspended and there
is no reason to expect that the
grounds for suspension cease to
exist, a court shall grant the right of
custody to the other parent if it
corresponds to the interests of the child.

Transfer of the right of custody
 If the right of custody belongs to only one
parent, the other parent may request from a
court that the right of custody of the child be
partially or fully transferred to him or her
 If the right of custody belongs to only one
parent on the basis of a court decision, the
other parent may request transfer of the
right of custody in the case the
circumstances on the basis of which the court
decision was made have changed significantly
(or restoring the joint right of custody)

A petition is satisfied if:
 If the trasfer of the right of custody corresponds
to the interest of the child
 Child at least 14 years of age does not object to
it
 Parent requesting transfer of the right is suitable
and able to exercise the right of custody

A petition is satisfied if:
 If a parent with the sole right of
custody has died or has been deprived
of the right of custody, a court shall
grant the right of custody to the other
parent unless it is in conflict with the
interests of the child.

Following child’s interest
Upon hearing any matter concerning a
child, a court shall make a decision
primarily in the interests of the child, taking
into account:
 all the circumstances
 legitimate interest of the relevant persons
Child protection’s principle is to always
prioritize childs interests.

 Childs opinion and interest are not
synonyms, but child’s opinion must be
taken into consideration and evaluated to
take into account the child’s current and
future well-being

According to the United Kingdom’s Children Act
(1989) judges must take into consideration:
 the views of child
 her/his physical, emotional and educational
needs
 the effect of change on the child
 her/his age, sex and personality
 the pains which she/he has allready suffered
or could suffer
 the competences of each of the child’s
parents to meet the child’s needs

The best interest of the child is considered:
 Taking into account the wish of the child, the
existence of home (inc. linving conditions), stability,
development needs, kindergarten and school
attendance, taking acount child’s daily proceedings
and living arrangements, child’s emotional well-being,
child’s good relatioship with both parents, the
opportunity to communicate with peers and loved
ones, good relationship between the parents, parents
participation in child’s rearing, parent’s living
arrangements, cooperation capacity and achieving
agreements in case of dipute

 In accordance with the interest of the children is that
both parents are raising and taking care of the them
(judicial decision 2-11-6114) – if parents wish to
terminate the joint right of custody, the court can
decide that it is not in the best interest of the child
 Child’s interests are limiting parent’s interests. – it
must be noticed that the principle of parent’s equal
right’s is limited by child interest principle (judical
decision 2-08-89161)
 Brothers and sisters growing up together (judicial
decision 2-11-14383)

Petitioning the court
 Proceeding on petition– Code of Civil Procedure
§ 475 section 1 point 8 and Code of Civil
Procedure § 550 section 1 point 2
 State fee – 10 €; through www.e-toimik.ee 5 €;
securing an action (initial legal protection) 50 €;
State Fees Act § 59 section 17
 Jurisdiction – residence of the child; Code of Civil
Procedure § 110 section 3
NB! Can be solved in proceeding of action, if it is
being requiered with divorce claim or support
order in procedure based on a claim.

Court proceeding
 The court may hear and adjudicate matters on
petition without holding a court session.
 Absence of the persons summoned to the court
session does not prevent the hearing or adjudicating
of a matter unless otherwise ordered by the court.
 A matter on petition shall not be adjudicated by a
ruling by default.
 The court is not bound by the petitions submitted by
the participants in the proceeding or by any
circumstances, and the evaluation by the participants
in the proceeding of the circumstances.

Court proceeding
 A participant in a proceeding shall be heard at
the request thereof.
 A person is heard personally and orally. A court
session need not be organised for this purpose
and the hearing need not be conducted in the
presence of other participants in the proceeding
unless otherwise provided by law.
 The court may also hear a person by phone or
deem a written or electronically presented
position of a person to be sufficient for the
purpose of hearing the person.

Court proceeding
Provisional legal protection
 If it is necessary for the preservation or temporary
regulation of an existing situation or status , if there
is a need for rapid resolution due to the
circumstances
 Measures for securing an action are adjusted by the
court already during the proceeding, e.g. parents
rights concerning common child, parental access to
the child, surrender of the child to the other parent,
surrender or use of the things that are ment for the
child’s personal use

Court proceeding
Provisional legal protection
 Court can initiate on it’s own initiative
 Court asks the opinion of the official of a state
agency or local government agency if the delay
does not damage the interest of the minor
 If the measures have been taken into use
without consulting with the official of a state
agency or local government agency it must be
done immediately

Court proceeding
Taking violence into account
 Children are victims of domestic violence also when they witness
it
 Usually in cases of right of custody, in decision-making court
takes into consideration proved cases of violence, taking into
account also other facts
 The proof can be: previous judicial punishments, started criminal
proceedings, emergency calls to police, results of forensics
 Sometimes unproven violence has been taken into account when
parties have referred to it, also trough hearing of the child

Court proceeding
 Child’s testimony and fear of a parent can be in some cases important
argument for the court, also when there is no direct proof of it
 Court does not take into account so-called word against word situations
between the parents if one of the parents claims that the other parent is
violent but there is no other proof of the violence
 Violence between the parents are not usually taken into account if it is not
proven
 In case of violence between the parents, repetition of violence is
considered
 It is importaint to differentiate provoked incidents of violence

Court proceeding
 If a parent has been violent againts the other
parent, it must be evaluated if that kind of
behaviour is dangerous to the child
 If the child sees violence between the
parents, court can take it as a potential
threat to the child, because that kind of
incidents are traumatising to the child. Also it
is not excluded that parent will not lay hand
on the child at some moment

Court proceeding
 The harmful impact on the child does not
always come through violent or threatening
behavior of the parent, directly against the
child. It can also come through violent or
threatening behavior against loved ones that
a child perceives.
Supreme Court civil chamber 01.03.2007,
ruling number 3-2-1-4-07

Court proceeding
 a local municipality government or city government participates
in the proceeding, court asks for the opinion; usually it is given
by socialworker or child welfare worker
 court assignes a legal representative to a child who’s services is
funded by the state
 if a child is represented by a legal representative in the court
proceeding, the parent’s have no right to represent the child in
the proceeding (Code of Civil Procedure § 217 section 7)
 court hears in a case concerning a child, a child who has attained
at least 10 years of age, it is possbile to hear also a younger child

Court proceeding
Hearing a child
 In a child’s normal environment, if court sees
that it is necessary considering the case
 In the presence of Psychiatrist, psychologist or
social worker if needed; it is also possible to
allow other persons to take part of the hearing if
the child and his/her parents agree with it
 It is possible to waive of hearing only in case of
reasonable excuse

Court proceeding
Hearing a child
 It is importaint to guide the conversation in a
way that the child does not have the feeling
that he/she is the one who makes the
decision not the judge
 In case of a dispute between the parents, it
is important not to make the child feel like
she/he has to choose between the parents

Court proceeding
Hearing of the parents
 Concerning the personal rights of the parents, court
hears the parents in person
 If the proceeding concerns a threat to child’s well-
being, court hears the parents in person and
discusses child’s interests with them
 If the parent has no parents rights or her/his children
have been given into custody, the court does not
have to hear him/her, if the hearing apparenlty won’t
help to solve the case or uncover any facts

Court proceeding
Hearing the foster parents and others
who are raising the child
 If the child is already living with one of
the parents, with a person who has the
right of access or in a foster family for a
longer period of time, court will hear
these persons conserning the case, unless
it will not apparently help with solving the
case or wont help to uncover any facts

Court proceeding
Solving the case by agreement
 The court has to guide the parties to solve
the case by agreement, as soon as possible
and in every stage of the proceeding
 Court has to hear the parties as soon as
possible and refer to the possibility to use
family counselor’s help to form a common
position in taking care of the child and taking
responsibility of her/him

Court proceeding
 Solution in case of proceeding on petition is
court ruling
 Court ruling does not have to be justified if it
is to satisfy the application or does not limit
the right’s of the parties, unless the court
ruling belongs to recognition or is a subject
to execution outside Republic of Estonia
 Court ruling is subject to execution since the
entry into force unless otherwise said in the
law

Court proceeding
Child’s personal right of appeal
 A child of at least 14 years of age with sufficient
capacity to exercise discretion and will has the right,
in a family matter on petition pertaining to his or her
person, to file an appeal against a ruling without the
assistance of his or her legal representative.
 A child shall be personally informed of the rulings
against which he or she may file an appeal.
 The reasoning of a ruling need not be communicated
to a child if this could result in harmful consequences
to the development, upbringing or health of the child.

Court proceeding
Data entry into the population register
 A ruling on a matter of right of custody of a parent serves
as a basis for amending the vital statistics information of a
person.
 The court sends the ruling to a vital statistics office within
ten days after the entry into force of the ruling for entry of
the information concerning the right of custody in the
population register.
NB! If the ruling is made on the basis of § 137 the data will
be entered to the population registery and if it is made on
the basis of § 119, the data will not be entered

International jurisdiction
Usual whereabouts of a child
 Family law relationships between a parent and a child shall
be governed by the law of the state of residence of the
child – Privet International Law Act § 65
 Estonian court must check to determing the jurisdiction,
where was the usual whereabout of a child when the
application reached Estonian court (application conserning
parents rights)
 The right to determin the permanent residence of a child is
in the hands of the national court, as determing it has to
take into account specific case and facts of the case

In determing the usual whereabouts of the child:
 Childs integration to the social and domestic
enviroment
 Duration and legality of the stay in the territory
 Conditions and reasons why the family moved
into a member state
 Nationality of a child, school attendance place
and conditions
 The child’s family and social relationships in the
member state
 Language skills

 Usual whereabouts of a child must be determined
with country not city or by accuracy of another place
 In determing usual whereabouts of a child has to be
taken into account all facts to detect with which
country is a child most closely related to
 Usual whereabouts of a child cannot be determined
only by how long has a child been in one or another
member state
 Usual whereabouts of a child must be determined to
the court according to EU regulation nr 2201/2003 art
8 section 1 by the time the application is submitted

Wrongful removal or retention of a
child
 Competence remains in a member state
court in which was the usual whereabouts of
a child, right before his/her removal or
retention
 Competence of a court remains until a child
has got a usual whereabouts in another
member state and every person, institution
or another authority, who has guardianship of
the child, has accepted the removal or
retention of the child

child
 If the removal or retention of a child has not
been accepted, the competence maintains
until the child has lived in another member
state for at least one year after a person,
institution or another authority who has
guardianship of the child has got or should
have got the information about the location
of the child and the child has settled in the
new environment and at least one of the four
condition has been filled

child
1. One year after the user of guardianship has
known or should have known the location of
the child and has not submitted return-
application to the competent authorities in the
member state, where the child has been taken
or where he/she is being detained
2. Guardianship’s holders application has been
annulled and during the time-period mentioned
before has not been submitten a new
application

child
3. Case under review in the member state,
where the child lived right before the wrongful
removal or retention, has been finished
4. In that member state court, where was the
child habitual residence right before the
wrongful removal or retention of the child, has
been made a judgment on guardianship that
does not include the child’s return

Deciding about the right of
custody after the wrongful
removal of the child
Court of that state where the child has been taken to,
cannot decide on right of custody, after it has become
aware of the child’s wrongful removal
 Until it has not been decided, that it is not necessary
to return the child
 If after becoming aware of the wrongful removal of
the child has not been submitted the child’s return-
application
NB! But until that, the state from where the child has
been wrongfully removed, has the right to solve the
question’s conserning the right of custody

Child abduction, right of access
and right of custody
 Within the year 2013, Estonian court’s have been
decided to send back to abroad 3 children
 In judicial proceedings has been 4 application
conserining the return of a child
 In case of one child, court found that the return-
application has to be dismissed because the child
has already returned to foreign country based on
the agreement between the parents

Child abduction, right of access
and right of custody
 In the year 2013 Estonia submitted 10
applications for return of a child – 3 to
Finland, 2 to Netherlands, 1 to Lithuania,
Norway, USA, Russia and United Kingdom
 Foreign countries submitted 4 application
for return of a child – 1 from Mexico,
Norway (2 children), Sweden and Finland

Disagreements concerning the
right of custody
County Court’s judicial position
 Because in part of the right of custody there are
serious disagreement’s beween the parents and
parent’s have in relation to the child equal right
of custody, the continuation of the situation is
not possible. At this time it is in the interest of
the child that the sole right of custody is being
performed by the parent who is able to provide
the child wtih stable prosperity, care and
upbringing
Harju Maakohtu (County Court) decision 2-11-
40515 in civil matter made in 5.March 2012

right of custody
County Court’s judicial position
 To end the joint right of custody and to give it to one
of the parents just because of the fact that parent’s
are unable to reasonably solve the conflict between
them and to communicate normaly and it would not
be in the interest of the children. Parent’s are
obligated to get along for the sake of the children to
not to damage children’s right’s and interests
protected by law.
Pärnu maakohus (County Court) decision 2-10-2976
and 2-10-8298 in civil matter made in 15. May 2011

right of custody
Judicial position of foreign
countries
 According to the Federal Constitutional Court of Germany
(BVerfG) the premise that the joint right of custody after
divorce would be the most favorable solution for the
welfare of the child does not apply, because exercise of
joint right of custody by parent’s after divorce requires
working social relationship between the parent’s and
requires minimal extent of consensus
 In each case it has to be determined, if the conflicts
between the parents allow to maintain joint right of
custody or if the fulfillment of joint parental responsibility
does not work anymore

right of custody
countries
 In German law it has been brought out that the
right of custody can be terminated also in a way
that, in part of ascertaining the whereabouts of a
child is left as joint right of custody and all the
other questions are left to one parent whom the
child lives with permanently, as sole right of
custody. The reason of this is to avoid a situation
where the parent holding sole right of custody
would take the child to abroad against the wish
of the other parent

right of custody
countries
 For example economic interest as the reason to move
is justified in a case when a parent who has been
unemployed for a long time and he/she finally find’s work
in some other city and parent who is against the moving
away does not pay support or pays too little: improvement
of economic situation has in this case direct impact on the
child’s life quality; inversely, only the wish for
„environmental change“ does not justify the desire to move
MüKo zum BGB, 6. Auflage 2012, BGB §1697a, Author:
Olzen, vnr 5

right of custody
countries
 Swedish family law (Lagen om Föräldrabalk;
as Swedish Children and Parents Code) § 21
section 5 regulates that if the child’s age and
maturity allows to take into account their
wishes, decision cannot be made against the
child’s will, unless if the court sees that it is
necessary based on the interest of the child;
thereby the age of the child has not been
regulated, based on when his/her wishes
should be taken into account

Estonia’s Supreme Court’s position
 Takeing away custody over person fully from a parent in relation
to the child is an extreme measure. In applying degrading
measures that limit the parental rights the court has to consider
the interests of the child and parent rights and apply measures
that limit a parent right’s the least in order to ensure the
welfare of the child. In choosing measures the court must take
into account family autonomy principle and prefer if possible
measures that support the family and help to strengthen or
rebuild the bond between a parent and a child. Because fo this
the court can apply measures that separate parent and a child/
separate a child from the parent and take away custody over
person fully in relation to the child only in a case when the
measures supporting the legal relationship of parent and a child
has not brought any results or it is obvious that the supporting
measures will not help to remove the threat to the child. Taking
into account the family immunity principle the measures
applied by the court must be purposeful and proportionate.
3-2-1-13-11, Tartu, 4. May 2011

 Basically it is correct that failure to comply
parental responsibilities in careing for a child
can be considered as parents lack of interest
towards a child’s fate and failure to
communicate with the child. Still the court’s
left without considering if the fact’s
represented in this case refer to that the
person concerned had a reasonable excuse
for non-complying the parental obligations.
3-2-1-13-11, Tartu, 4. May 2011

 Parent’s intellectual disability, mental retardation and mental
health condition that cause a permanent coping disorder does not
give by itself a basis to take the custody over person fully in
relation to the child
 The fact that a parent does not cope with everyday organizing
independetly and need’s supported living services does not give
the basis by itself to take away the custody over person fully
 If someone want’s to adopt the child and the parent does not
agree with it, it does not give the basis to limit the parental
rights, also not to take away custody over person fully
3-2-1-13-11, Tartu, 4. May 2011

 The fact that parent’s do not cope with everyday life
arrangment’s and with developing the children and
the parents are in short supply of resources, does not
by itself give the basis to take away custody over a
person in relation to he child from the parent’s or to
separate the children from the family. In this situation
council’s appraisal is that it is justified to provide help
to the parents and instruct parent’s in child up-
bringing questions, as was found by the District
Court.
3-2-1-121-12, Tartu, 14.November 2012

 Parent who has custody of the child and has the right
to ascertain the whereabouts and social circle of the
child also includes a parents right to determine where
and with who the child lives with and this also creates
eeldused to for raising a child and taking care of
her/him
 Court can also give the right to ascertain the
whereabouts of the child to one of the parents (short-
term stay like vacation or children’s camp or in case
of parent’s wish to live seperately, child’s recidence in
the future)
3-2-1-45-11, Tartu, 7.June 2011

 Serious and repeated disagreements
between the parents in raising a child, can
refer to that maintaining joint right of
custody might not be in the interest of the
child
3-2-1-45-11, Tartu, 7.June 2011

 In case of separation of the parent’s could instead of
transfer of the powers of decision reconsider the
parent’s right of custody as a whole and change it
according to what right’s do the parents practice,
what obligation’s do they perform and what kind of
distribution of the right’s and obligations guarantees
the best solution to the child in case of the separation
of the parents. For this the Family Law Act § 137
section 1 gives the parent’s the right to turn to the
court to apply that the right of custody is given to
him/her partially or fully
3-2-1-45-11, Tartu, 7.June 2011

 If the parent’s do not reach an agreement with which parent will
the child live with after the separation, Court can maintain the
joint right of custody of the parent’s but give one of the parent’s
the right to ascertain the whereabouts of the child. In this case
the court has to take into account that giving one parent the right
to ascertain the whereabouts of the child it concerns also the
possibility to practice the right of custody over person of both
parent’s (to raise a child and to take care of him/her). Court can
also in the basis of this article time-limit the given sole right of
custody, as to give the sole right of custody for the time that the
other parent is not able to perform the right of custody because
of factual obstacles. Court can also, taking into account the
wishes of the parent’s, fix intermittent sole right of custody, if the
parents have agreed upon that the child lives alternately with one
or the other parent and it meets the interest’s of the child.
3-2-1-45-11, Tartu, 7.June 2011

Used sources
 Family Law Act
 Code of Civil Procedure
 Republic of Estonia Child Protection Act
 Private International Law Act
 State Fees Act
 Convention on the Civil Aspects of International Child
Abduction
 Council Regulation (EC) No 2201/2003 of 27 November
2003 concerning jurisdiction and the recognition and
enforcement of judgments in matrimonial matters and the
matters of parental responsibility, repealing Regulation
(EC) No 1347/2000
 Judicial writ 3-2-1-66-10 by Civil Panel of the Supreme
Court (in the context of Brussels Iibis Regulation)

Used sources
 The statistics of the international legal assistance of 2013,
Ministry of Justice
 Termination of joint right of custody and the transfer of the
right of custody, Practice of the courts, the Supreme Court
 Vanema hooldusõiguse määramise uuring, the final
report, Johan Skytte Institute of Political Studies at the
University of Tartu, requested by the Government Office

Contacts
Claudius Law Office LTD
GSM: (+372) 53 477 636
E-mail: info@claudiuslaw.com
Skype: claudiusbyroo
www.claudiuslaw.com

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