Belgium choses 50/50
Belgium’s new shared parenting laws (*)
By Peter Tromp MsC and Robert Whiston FRSA, 16 September 2009
Belgium has introduced radical reforms to its child custody laws. Not only has it forsaken sole custody as the preferred option and adopted shared parenting but has gone so far as to adopt the more radical position of equality between the parents. Not only do both parents share the custody time of their children but they share it equally with ‘alternating residence and care’. Not formulated as a prefixed end result but based in a strong presumption levelling the playing field on physical child custody decisions between the divorcing parents firmly, denying shared parenting only on strong objectiviable grounds. Below is an analysis of the Six Principles on which the 2006 Belgian Law Reform is premised. Below is an analysis of the Six Principles on which the 2006 Belgian Law Reform is premised.
(*) Note: A French language version of the original law reform text of 2006 adopted by the Belgian parliament can be read on the following website:
The 2006 Belgian reform law on equally shared alternating residence and care for the children after a divorce or separation is based on six principles, each of which build upon each other sequentially and are listed below in their specific order.
It must be borne in mind that unlike countries familiar with the Common Law, on the European continent it is normal for the kernel of the Civil Code to remain in place (i.e. unaltered) but with additions and amendments changing its complexion or direction from time to time. By contrast, in Common Law countries the usual process would be to execute a completely new statute making the old law redundant.
- The Belgian law begins by addressing firstly the largest group of parents who mutually find common agreement on the custody and care of their children (A).
- The Belgian law then addresses that group of parents who cannot agree (B).
- Thirdly, the Belgian law then addresses how enforcement of court ordered residential and accommodation orders are to be made (C).
Preamble: The Belgian law does not speak either of equal parenting or shared parenting, nor of equal shared parenting, but instead speaks of an equally divided “alternating residence”.
Translated, the title of the Belgian law is:
“Bill to focus on the equally divided alternating residence of the child whose parents are separated and regulating how the enforcement is to be conducted in terms of accommodation of children.”
A. Where parents can mutually agree and have come to an agreement:
1. The law recognises and rewards divorcing parents who reach by mutual consent and co-operation care and custodial arrangements for their children. The legislation encourages mutual consent and co-operation, if needed, by making available mediation to both parties.
The reward is that the parents are free to take responsibility for the arrangements of their children post divorce without court interference or seeking its permission. In effect the decision of the parents, if mutually reached, takes primacy over whatever the judge and court may think (i.e. overrules a judge’s discretionary powers).
The law addresses those parents who agree parenting and residential arrangement by mutual consent for their post-divorce living arrangements. This can include mutually agreed equal/joint custody or sole custody. Any arrangement for post-divorce parenting and residence that is jointly put forward by both parents to the court will be accepted by the court and incorporated into the record and validated (unless the judge can identify an obvious impediment that is not in the best interest of the child).
2.Where there is some disagreement between the parents but the judge and the court can nonetheless see there is a possibility for the differences to be reconciled the judge can put the divorce hearing ‘on hold’ (suspended).
The case may be suspended for a maximum period of one month during which time the parents must access the mediation in Belgium provided under the law in an attempt to solve their differences. Only when this is undertaken and an agreement reached by mutual consent will the court validate the parent’s agreement (and if the agreement is not against the best interest of the child).
B. But when parents cannot agree and cannot come to an agreement:
Only when parents do not agree the Belgian law introduces the concept of a presumption of an “equally divided alternating residence” and restores an equal level playing field between the divorcing parents.
3. Where parents cannot agree the law states that upon the request of only one of the parents the judge must investigate and seriously consider the possibility of ordering an “equally divided alternating residence” of the children between both parents as a post-divorce parenting arrangement.
Parents who cannot agree or who keep disagreeing on their post-divorce residence and care arrangement over the children have their options to decide taken from them and the court decides. The primacy of the legislation is equality for both parents and so the court therefore starts from the premise of an enforceable presumption for “equally divided alternating residence and care” if at all practicable on the request of one of the parents. This is achieved by the court giving weight, i.e. preference, to the parent who seeks joint custody over the parent who opposes joint custody.
However, joint custody is not a guaranteed end result as circumstances may dictate an unequal joint custody arrangement or even a sole custody award if serious circumstances indicate so, e.g. when parents are living 100 kilometres apart, making it practically impossible to have their child attend the same school during the time spent with each parent.
4. The law allows the judge to exercise discretion in deciding a more unequal division with regards stay and accommodation of the children between the parents than was requested by one of the parents. It is therefore possible for the court to deviate from the default position of an “equally divided alternating residence” request.
Thus the judge is given the discretion to differentiate from the request of one of the parents for an “equally divided alternating residence” order and instead can decide to make an order for an unequal division of stay and residence with the parents.
5. The judge is mandated to provide in writing why he has deviated from the default position of “equally divided alternating residence.”
He must disclose in his judgment his reasons and motivations in reaching his conclusions specifying why he cannot accede to “equally divided alternating residence” demanded by one of the parent’s.
In his written judgment the judge has to give an account of the considerations specific to the particular case and [why or how they affect] the interests of both the children and the individual parents. The written judgment of the judge is opened to appeal by the parent seeking equal divided alternating residence.”
C. Effective enforcement of court ordered alternating residence arrangements – when disputes later arise between the divorced parents
The final phase of the Belgian law is the arrangements in place for the effective enforcement of court ordered alternating residence arrangements.
6. Effective enforcement is achieved by keeping the case ‘active’ on the courts’ roll. This allows each of the parents to immediately resurrect the case and have access to the court should disputes between them later arise. Parents can access the court and without the need of a lawyer, unilaterally without the consent of the other parent and at any time, e.g. mother violates a father’s access time.
The divorce case, and therefore the custody and residence issue, cannot be closed by the courts until the children involved have reached their majority, i.e. have come of age.
If a disagreement arises the court must order a court hearing within three weeks after the application is made to decide on the matter. In such circumstances the case is given priority over all other cases pending at the court.
The items above (Pre-amble and 1 – 6) are the principles of the Belgian law on “alternating residence” and the accommodating of children after a divorce.
We would point out that the wording of the law reform text is not ambiguous. It does not speak vaguely of ‘shared parenting’ but of enforcing equality between parents by factually stating the terms of the residence and accommodation arrangements.