Article 138 of the Family Code (hereinafter referred to as the “FC”) stipulates that, in cases where the parents do not or will no longer live together, they must agree on the care and upbringing of the children that they had together, in line with the best interests of the child. They may either agree on a joint custody, to have all children in the custody of one of the parents, or to have some children in the custody of one parent while other children are in the custody of the other parent. If they fail to reach an agreement, the Department of Social Services or, at their request, a mediator can help them reach said agreement. Furthermore, Article 139 of the FC stipulates that a court settlement or a court decision on the joint custody of a child must contain a decision on the permanent residence of the child, on which of the parents will receive letters addressed to the child, and on child support.

The underlying principle of family law are the best interests of the child. Recently, an increasing number of court-adopted decisions is leaning towards shared parenting. The aim of joint custody is to equalise the position of the mother and the father, and to promote the rights of fathers while providing them with a greater responsibility for their inclusion in the life of their child, thus relieving women, who were in principle responsible for their home and family.

The essence of joint custody, i.e. shared parenting is, above all, to have the child spend the approximately same amount of time with both of the parents. Parents also share the responsibility for their children in terms of their health and educational responsibilities and other important decisions for the lives of their children.

Joint custody communicates to the child that both of their parents are equally involved in their day-to-day activities.

The court assigns joint custody if both parents consent with said joint custody arrangement, assuming that said arrangement does not run counter to the best interests of the child. Joint custody is therefore possible when there is no conflict between the parents or when the parents are capable of resolving any potential conflicts. Furthermore, joint custody is beneficial for the child if the parents get along well, if they are able to communicate with each other and to coordinate major life issues regarding their children, as well as day-to-day issues related to the upbringing and care for the child.

However, the Family Code also allows for the court to assign a joint custody arrangement if the parents fail to agree on the custody. The third paragraph of Article 138 of the FC namely stipulates that, if the parents do not agree on the custody of their children, the court is responsible for making said decision. The court may also decide, ex officio and pursuant to the provisions of said Code, on any measures intended to protect the best interests of the child. In the process of deciding on custody, the court always decides on the child support for any children that the parents had together, and on contacts with parents in accordance with this Code. It follows from the above that, in the absence of a custody agreement between the parents, the court has the opportunity to choose and determine the form of upbringing and care that would be in the best interests of the child. If the court finds that such an arrangement (joint custody) is not in the best interests of the child, the court shall not opt for this possibility.

If parents decide on joint custody or if such a custody arrangement is mandated by the court, the joint custody agreement itself also includes an arrangement about contacts. When the child is staying with one of the parents, said parent is therefore fully responsible for parental care, which also includes the right of access.

The issue that arises in joint custody arrangements is alimony. If the child spends the same amount of time with each of the parents in a joint custody arrangement, and providing that the parents’ abilities are comparable, the alimony is not set out within the meaning of a benefit claim, meaning that one of the parents would have to pay alimony to the other parent for a minor. Although the parents assess the needs of the child and each evaluate their individual contribution in terms of its monetary value, the court decision does not contain a benefit claim. However, if the abilities of both parents are not the same, an alimony is set out for the child based on the assessed needs.

In Slovenian case law, the courts [1]  are increasingly favouring the establishment of joint custody arrangements, especially if they find that such an arrangement would be in the best interests of the child. The court namely encourages this form of upbringing and care, as it believes that this communicates to the child that both parents are equal and that neither one of them is in a privileged position.

Sources:

• Family Code (Official Gazette of the Republic of Slovena, No. 15/17, 21/18 – the ZNOrg, 22/19, 67/19 – the ZmatR-C, 200/20 – the ZOOMTVI, 94/22 – dec. of the Constitutional Court, 94/22– dec. of the Constitutional Court and 5/23),
• Andreja Kruhar Winter, Skupno varstvo in vzgoja (Joint custody), “Pravna praksa”, No. 22, 2018, p. 15- 17,
• Jager Petruša, Zaupanje v varstvo in vzgojo skozi prizmo otrokove koristi (Trust in custody through the prism of the best interests of the child), “Odvetnik” magazine, No. 109-110, 2023, p. 27,
• Barbara Dobnik Renko, PhD, Skupna starševska skrb (Joint parental responsibility), “Pravosodni bilten”, No. 1, 2022, p. 101-123
  – case law

[1] Decision of the Ljubljana Higher Court, ref. no. IV Cp 1614/2021 of 6 December 2021