In cases where the parents do not or will no longer live together, they must agree on the care and upbringing of the children together. If the parents agree on custody, they can propose a court settlement, but if they do not agree on custody, the court decides.

Under Article 138 of the Family Code, the court issues a new custody order if the changed situation and the best interests of the child so require, regardless of whether the order was made in the form of a court settlement or a court judgment. In line with case law, the dynamic nature of family relationships precludes a rigid understanding of finality, which is why the Family Code allows for the reconsideration of issues of child custody, care and maintenance, even if they have already been decided. Such a redetermination is not permissible at any time, but only if the situation changes.

A decision on custody, upbringing and maintenance or on contact between the child and his or her parents can be changed if the changed circumstances and child’s best interests require it. Although the law does not specify in any detail what these changed circumstances should be, it is necessary to examine the case law which, by deciding different cases, has shaped the framework of the notion of “changed circumstances and the best interests of the child”. Any change in the relationship between the child and the parents, or any other event, cannot lead to a re-examination of the issues already decided, but this does not mean that the court must exercise a marked restraint in doing so. The relationship between child and parents is a living and evolving one, so that even with careful consideration, the legal framework in which it takes place may eventually need to be adjusted. Therefore, the assessment of whether circumstances have changed to such an extent that a reassessment of contact arrangements is necessary must focus on the best interests of the child.[1] The court decides whether there are such changed circumstances on a case-by-case basis.

In one of the specific cases in which the court was considering whether such changed circumstances existed, it is not insignificant that the court pointed out in its reasoning (although it did not specifically address this) that the contacts were fixed by judgment in August 2020, but that a new application for a change of contacts was made in November 2021, and that there had been no change in circumstances since then. It is, of course, essential to note that there has been no change of circumstances, but the fact that in this case there was a relatively short time lag between the application and the decision cannot be entirely disregarded.

How significant these changed circumstances must be was decided by the court in a case involving the new decision on awarding custody of children, where the court emphasised that these changes in circumstances must be significant. The decision must answer the question of whether the legally relevant circumstances on which the original custody decision was based have changed significantly. Any single and minor change cannot result in a new decision on awarding custody of the child.[2] It is presumed that a final court decision awarding custody of minor children to divorced spouses is based on respect for the principle of the best interests of the child. Thus, in one case, the court decided that the mere fact that the child is now a few months older is not a substantially changed circumstance that would require a reconsideration of the circumstances of the child ‘s placement[3]. In the second case, the court held that the applicant’s allegations that the other party had prevented him from going abroad with the children after the conclusion of the court settlement, that she had prevented him from contacting the children by telephone and Skype to the extent agreed in addition to the face-to-face contacts, that she had failed to inform him of changes in the children’s residential address and that she had failed to provide him with information essential for the children’s lives, were not of such a nature, or did not constitute such changed circumstances, as to require the court to interfere with the court settlement.[4] In the third case, for example, the court ruled that the (re)education of a child aged almost 12 had been decided by a decision that had become final. The fact that the boy was transferred in spite of his expressed wishes, which had not changed and should have been respected, and which were not in his favour, does not constitute a changed circumstance. This is an attempt to interfere with a final court decision, which is not admissible.[5]

When deciding on custody (and maintenance and contact, etc.), the court also takes into account the child’s opinion and the opinion of the social work centre. The statements made by the social work centre in the proposal, opinion and other documents, as well as the hearing of the social work centre’s expert, shall be deemed to be the testimony of a person who has special expertise on the facts. The opinion of the social work centre has a very important substantive and procedural weight, as it is the professional opinion of a body which, like the court, is obliged to act in the best interests of the child.[6]

[1]VSL Decision IV Cp 1235/2021

[2]VSM Decision III Cp 2/2023

[3]VSL Judgment IV Cp 62/2019

[4]VSL Judgment and Decision IV Cp 6/2017

[5]VSL Decision IV Cp 2006/2020

[6]VSL Decision IV Cp 10/2023