Child custody trial & child support payments in the Czech Republic

A marriage in the Czech Republic cannot be divorced before a decision on custody of children is rendered. The court will prefer to decide in accordance with parent’s agreement. If there is no agreement, the court will make a decision that will best serve children’s needs.

The child custody trial takes place before the divorce proceedings and it is completely separate. It can take place also in case of unmarried partners who cannot agree on custody of their child.

Court jurisdiction

Before deciding the case, the court will determine whether it has jurisdiction. As a general rule, if the children have place of habitual residence in the Czech Republic (as a factual matter, not legal status), Czech courts will hear the case.

In complicated cases (for example parents often change residence due to work reasons, or connection to Czech Republic is not straightforward) establishing jurisdiction may be more complicated. There are several laws that may be applied under different circumstances:

• Council Regulation (EC) No 2201/2003, in cases concerning two EU member states.
• Hague Convention
• A bilateral treaty between the Czech Republic and other country
• Conflict of law rules in Czech Act No. 91/2012 Coll.

Governing law

Typically, if Czech court accepts jurisdiction based on the children’s factual residence in the Czech Republic, the case will be also governed by Czech law. However, there may be exceptions to that rule, which may significantly complicate proceedings.

Filing lawsuit and proceedings overview

Custody proceedings are typically started by filing of a lawsuit. In extreme circumstances the proceedings may be started also by petition of the social services.

According to the law, a custody case should be decided within six months. However, it is rarely so. Especially when there are severe disagreements between parents, the proceedings can be lengthy, usually about twelve to eighteen months. In case that the judge comes to conclusion that expert examination is needed, it may add another four to six months, as experts that are willing to prepare statement for the court are few and in high demand. If expert is appointed, the judge usually requests examination of both parents as well as the children.

The court will be deciding both custody as well as child support payments at the same time. So apart from relationship and ability to take care of the children, parents will be required to disclose all of their assets as well as to provide detailed information about their income in the past twelve months.

The court may entrust a child to the care of one of the parents or to shared or joint care; a court may also entrust a child to the care of a person other than a parent if it is necessary with regard to the interests of the child. If a child is to be entrusted to joint care, the consent of both parents is required.

Criteria for court decision

The main consideration of the court lies with the child’s best interest. Court considers primarily the following issues:

Constitutional issues:

• Existence of blood relation between the child and the person trying to achieve custody,
• level of preservation of child’s identity and their family ties,
• ability of the person trying to achieve custody to ensure the child’s development and physical, educational, emotional, material and other needs,
• child’s preferences.

Statutory issues:

• The child’s personality, especially their talents and abilities in relation to the potential to develop,
• emotional inclination and family background of the child,
• upbringing skills of each parent,
• existing and expected stability of the upbringing environment in which the child is to live in the future,
• emotional ties of the child to their siblings, grandparents, or other relatives and unrelated persons,
• which of the parents has until that point properly cared for the child and properly provided for their emotional, intellectual and moral upbringing,
• which of the parents is better suited to provide the child with healthy and successful development,
• the right of the child to be cared for by both parents and to maintain regular personal contact with them,
• the right of the other parent to whose care the child will not be entrusted to get regular information about the child;
• the ability of a parent to agree on the child’s upbringing with the other parent.

The court must find out what the child’s preference is. In case of children of 12 years of age and older, the child’s preference usually becomes key to the court’s final determination. For younger children, it is still an important factor, as far as it aligns with the other considerations mentioned above.

The children will be interviewed without parents being present. The judge decides whether to conduct interview personally in the court room or entrust social services to do it.

Other peculiarities

Judge’s role in child custody proceedings is wider than in standard civil court cases. The judge is usually more involved in the case.

Social services also conduct their own investigation. That usually includes interviewing the parents and may also include inspection of suitability of the parents’ apartments for the children’s upbringing.

Due to wider discretion, judge’s individual personality traits will affect the way the proceedings will go in case of no agreement between the parents:

• Some judges automatically refer the parents to mediation and only start proceedings after the mediation failed.
• Some judges try to lead parents to amicable solution through a series of “test modes” of various custody arrangements (as far as parents consent to it).
• Some judges are quick to order psychiatric and psychological evaluation of parents and children (especially if children are very young).

Child support payments

In case of child support, the court may award it as far as three years back before the start of the proceedings. When doing so, the court may also award late payment interest. It is therefore not only moral, but also practical to be paying sufficient amount of child support even before the court makes final decision. After the final decision, failure to pay child support constitutes a crime which is punishable by up to three years of imprisonment. It is therefore important to pay in time and meticulously save payment confirmations.

The amount of child support depends on the following issues:

• What is the custody arrangement.
• What amount of time children spend with which of the parents.
• Parents’ income and other support obligations.

In general, the children have the right to the same standard of living as their parents. As a basic point of reference, the Ministry of Justice issued a recommended child support table (i.e. how much support should be paid to other parent in case of 100% custody). The below version is from August 2022 and shows how much of parent’s net income should go towards each child’s support, depending on the number of children:

The last line shows the recommended net minimum of net income that a parent should be left with. It is either “control amount” or percentage of net income, whichever is higher (in case of 1 child percentage doesn’t play role). Control amount is counted in line with rules that concern court ordered debt enforcement from somebody’s wage. Examples of control amount: Parent with average Prague net income of CZK 38.981 should be left with no less than 17.787. A parent on minimum wage of CZK 14.418 net (and no other sources of income) should be left with no less than CZK 11.084. It is clear from looking at the table that the last line concerns mostly low earners.

It should be understood that the above table is only a recommendation. For example if a child has special needs connected to its health, those shall be satisfied notwithstanding the recommendation table limits.

Preliminary injunction

In case that a parent either refuses to allow child’s contact with the other parent or when the higher earning parent refuses to pay child support, the court can issue a preliminary injunction.

The court must decide on injunction within seven days of filing, usually without public hearing and without requesting any additional information from either party. For injunction to be issued, there must be exigent circumstances and sufficient evidence.

If issued, the injunction is enforceable immediately notwithstanding whether an appeal is lodged. Apart from practical enforcement, failure to comply with injunction may lead to a fine of up to CZK 50.000 (which may be issued repeatedly) and in most severe cases also to criminal charges.

Generally, injucntions are granted only for absolute minimum necessary, be it minimum time spent with children necessary to keep mutual ties or minimum support payments.

Final notes

When children are present, a parent should avoid making any decisions regarding divorce unless detailed preparation was made, including legal counseling. A clear path towards practicable and likely custody judgement should be decided before any steps are taken.

Finding a mutually agreeable solution is always preferable, as it leads to a quick court decision rendered during a two-hour hearing, taking place couple of months after filing. When agreement is not possible, child custody proceedings can become lengthy, nerve-wrecking and expensive.

If you are considering getting a divorce in the Czech Republic, don’t hesitate to contact me.