Child after parental separation – will shared custody become the standard?
Parental separation is always a difficult moment – not only emotionally, but also logistically. In such situations, one of the key questions quickly arises: is it possible to arrange child custody in a way that allows both parents to continue playing an equally important role in the child’s life?
Increasingly, the answer to this question is shared custody. Until now, it has been one of several possible solutions, usually applied in specific cases. However, in light of the proposed changes to the Family and Guardianship Code, its importance may significantly increase – not only in court practice, but also in the overall approach to raising a child after parental separation.
In the following sections of this article, we will explain exactly what is set to change and what consequences the new regulations may have for both parents and children.
What is joint custody – definition and practice
Joint custody is a model of child care after the parents’ separation, in which both parents participate in the child’s upbringing to a similar extent. In practice, this means that the child lives alternately with each parent according to a set schedule – weekly, two-weekly, or otherwise – tailored to the specific family situation.
From the perspective of family law, shared custody is a form of exercising parental authority that requires the active involvement of both parents in the child’s daily life, not only through contact but also through parenting responsibilities. For shared custody to be feasible and beneficial for the child, the following are essential:
- good communication between the parents
- consistent parenting guidelines in both homes
- appropriate living and organizational conditions
- a genuine willingness to cooperate on matters concerning the child
It is worth emphasizing that shared custody is not a solution in every case. Courts assess on a case-by-case basis whether such an arrangement is in the child’s best interest. Shared custody is undoubtedly only possible where parents, despite their separation, are able to cooperate with one another.
Proposed amendments – will joint custody be granted more often?
The proposed amendment to the Family and Guardianship Code clearly aims to strengthen the role of both parents in raising a child after a separation. In practice, this could mean a significant shift in the courts’ approach to cases involving parental authority and the child’s place of residence.
It is worth noting that under current regulations, alternating custody does not function as a separately defined legal institution. In practice, courts use the concept of recurring periods of the child’s stay with each parent, which in practice are not always equal and do not necessarily imply a 50/50 split. This solution is permissible, but it lacks explicit statutory authorization as an independent custody model.
The aim of the proposed changes is, to some extent, to clarify and strengthen the role of shared custody in judicial practice, understood as a real and comparable participation of both parents in raising a child, as well as to legally regulate it in the law.
In practice, this may result in:
- More frequent consideration of shared custody when deciding matters of parental authority
- Moving away from the traditional model, in which one parent has primary custody while the other is limited to visitation
- Greater emphasis on joint exercise of parental authority and an equal role in the child’s upbringing
At the same time, it is important to note that the draft law does not introduce shared custody as mandatory. It will not be applied automatically or by default, and in each case, the individual assessment of the child’s situation and the feasibility of such an arrangement will remain decisive.
The legislator has explicitly indicated the criteria for granting shared custody. Under the proposed regulations, the court will be able to award shared custody only in circumstances that serve the child’s best interests. This means that the child’s welfare remains the primary criterion in all decisions regarding the child.
The most important factors supporting a decision to award shared custody include:
- Child’s best interests – the fundamental criterion in every decision regarding parental authority. The court will assess whether alternating stays would harm the child psychologically, emotionally, or socially.
- Parents’ ability to cooperate – parents must be able to communicate and make joint decisions regarding the child’s upbringing, education, and health.
- Housing conditions – each parent’s home should provide safety, stability, and the ability to meet the child’s daily needs.
- Distance between parents’ homes – the frequency of changes in the child’s residence should be practical, so as not to disrupt their daily life (school, extracurricular activities, social contacts).
- Child’s age and developmental needs – younger children may require a more stable environment, while older children may adapt better to an alternating custody arrangement.
- Parental involvement – it is essential that both parents actively participate in the child’s life and share childcare responsibilities equally.
This means that, despite the clear direction of the proposed changes, courts will continue to have discretion in their decisions, taking into account the specific circumstances of each family and, above all, the best interests of the child. A decision to grant shared custody will not be automatic.
Alimony and shared custody – planned changes in the family code
Until now, under Polish family law, the obligation to pay alimony most often rested on one parent, regardless of the actual division of time the child spent with each parent. In practice, this meant that even with repeated, though unequal, periods of custody, one parent was required to pay full alimony.
The proposed amendments to the Family and Guardianship Code, introducing shared custody, bring a more flexible approach to alimony, tailored to the actual model of child care. In practice, this means that the court will take into account the real involvement of both parents in raising the child and the expenses each parent bears.
The most important change is the possibility of reducing or even waiving the alimony obligation if both parents contribute similarly to the child’s upbringing under a shared custody arrangement.
It is important to emphasize, however, that the draft law does not automatically exempt parents from paying alimony. The court’s decision will always depend on the individual situation of the family, the actual costs of raising the child, and the specific form of shared custody.
Summary
Undoubtedly, the proposed amendments to the Family and Guardianship Code focus on greater involvement of both parents in raising a child after separation. While current regulations do not explicitly define shared custody, the draft law provides for its formal recognition and encourages more frequent application by courts as a real form of child care, while retaining flexibility. This means it will not be mandatory, but legally regulated in the applicable legislation.
Decisions regarding shared custody will depend on several factors, primarily: the best interests of the child, the child’s age and developmental needs, the parents’ ability to cooperate, housing conditions, and the distance between the parents’ homes. This ensures that each case is evaluated individually, taking into account the specific circumstances of the family.
In practice, the proposed changes aim to ensure a fairer distribution of parenting responsibilities and costs between parents, and, above all, to provide the child with stable contact with both parents, which will undoubtedly support the child’s emotional and social development.
If you have any questions or doubts, as well as if you would like to cooperate with us, we invite you to contact our attorney Katarzyna, who will be happy to answer your questions and help you throughout the procedure regarding shared custody and any matters concerning a minor child.
Phone: +48 502 775 164
Email: k.lewicka@lzw-law.com
