Step-parent’s right for visitations with step-child after termination of relationship with their biological parent (case Vinškovský v. the Czech Republic)

As a divorce lawyer, I am sometimes approached by clients who are seeking advice about the possibility of obtaining court ordered visitations with a step-child that they had been raising up, but may lose contact after terminating the relationship (be it marriage or factual) with the child’s biological parent. This article sums up conclusions of the European Court of Human Rights in the case Vinškovský v Czech Republic, Application no. 59252/19, as well as some other remarks that are notable for any step-parent.

Vinškovský v. the Czech Republic

Origin of the step-parent case

In March 2015, Mr. Vinškovský (step-father) entered a relationship with a woman who had a daughter born in November 2012. The daughter’s biological father had no regular contact with the child and the step-father assumed all of the father’s roles. Among other things, the mother was encouraging the child to call him father.

The couple separated in June 2017. After this point, the mother allowed only irregular contact between her daughter and the step-father. After Christmas 2017, she entirely forbade further contact. She also entered into a new relationship and was encouraging the daughter to consider her new partner as the real father.

The step-father started court action in May 2018. First, he filed for preliminary injunction. This was however denied as he failed to prove the need for immediate action. I.e. the delay between last contact and filing may have impacted the court’s decision.

Prague 8 District Court decision

At the same time, he was also seeking a final judgement allowing him contact with the step-daughter. The District Court for Prague 8 refused to grant such judgement on the following grounds:

(1) By the time of the decision, more than 8 months have elapsed from the last contact, during which time the daughter was under influence of the mother, who  did not wish further contact. (2) Although the daughter had generally positive memories, she failed to show that she missed him during professional interviews with her legal guardian appointed by the court for the proceedings. (3) If granted, the child would be placed in a very challenging situation, whereby she would have (a) de-facto new step-parent taking care of her in her current home (mother’s new partner), (b) court ordered contact with former step-father and (c) possibly also care of her biological father, who was legally entitled to be given visitation rights at any time.

Thus, the court concluded that granting the visitation rights to the former step-father would be against the child’s best interest.

Unsuccessful appeals

The step-father unsuccessfully appealed the case to the Municipal Court in Prague, which held that the step-father had been in his role only for about two years, until the daughter was four and half, d that did not amount to a long period of meaningful contact likely to result in a persistently strong relationship.

The Constitutional Court refused to hear the case on the grounds that the plea is manifestly unfounded. The full decision is available online: IV. ÚS 1378/19 #1.

The European Court of Human Rights made the following determination (full decision is available online: Application no. 59252/19, Martin Vinškovský v. the Czech Republic):

48. The Court reiterates that while the State should in principle enable the ties between biological parents and their children to be preserved, it should examine on a case-by-case basis whether it is in the child’s best interests to maintain contact with a person who is not biologically related but who has taken care of him or her for a sufficiently long period of time (see paragraph 43 above). Indeed, special caution may be needed when the contact rights of a “social parent” are at stake, and the child’s best interests must remain the overriding principle (see also paragraph 24 in fine above). This follows from the very nature of “social parenthood”, in which adults engage through their own informed choice but which for a child implies the possibility to have several social parents over time; if the child were to maintain contact with all of them, his or her family situation could become unduly complicated – particularly in the event that conflict existed between the child’s biological and “social” parents. Therefore, before granting contact rights to a child’s “social parent”, the courts have to ascertain that there is a strong interest on the part of the child in maintaining such contact, and that that interest is capable of counterbalancing any potential drawbacks.
49. In the present case, the Court is satisfied that the Czech courts took into account the major elements that are relevant within this context – namely, the length of the duration of A.’s cohabitation with the applicant, her age at the time of the cohabitation and her attitude towards the applicant at the time of the courts’ decisions. In doing so, they adduced relevant reasons to justify their decision and gave proper consideration to A.’s best interests. Although it can be agreed with the applicant that the judge’s interview with A. (at which the applicant had not been present) should have been video-recorded and that A. had not received an appropriate prior explanation as to the nature and the purpose of the proceedings, the Court considers that A. was sufficiently involved in the decision-making process and had adequate opportunity to express her views. The Court adds that it would have been going too far to require that a psychologist be present at the judge’s interview with A., as argued by the applicant.

(Note: I was not representing the claimant in this case, I am merely reporting about it.)

Considerations regarding step-parent’s visitation rights

Czech Civil code states the following:

Relationships between the child and other relatives and other persons

Article 927

Persons related to the child, whether close or distant, as well as persons socially close to the child, have the right to have contact with the child if the child has an emotional relationship with them which is not merely transitory and if it is clear that the lack of contact with such persons would be detrimental to the child. The child shall also have the right to have contact with such persons if they consent to such contact.

While a step-parent may seek visitation rights (contact) with a biological child of their ex-partner, the case above shows that it may be a tough up-hill battle. The case above shows that the following needs to be first and foremost taken into consideration by a step-parent:

• Filing a preliminary injunction as soon as possible. I.e. as soon as the biological parent starts making contact with the child difficult. The court has to rule within seven days. Preliminary injunction can be granted if there is urgent need for it. As the time passes, the probability of the court finding urgency for granting preliminary injunction significantly lowers.
• In the final decision, the courts are likely to approve the state of affairs that is proven to be working well. If preliminary injunction is granted, the probability of proving that maintaining contact with the child is in their best interest is significantly higher. If preliminary injunction  is not granted, it is more likely that the court will hold that re-entering child’s life after 6 – 10 – 14 months absence will be to their detriment.
• The length and impact of the step-parent in the child’s life plays an outsize role in the court’s determination.

Further, there are also other considerations. These do not follow from the above-mentioned case, but which need to be taken into account:

• The child’s wishes must be taken into account by the court. Generally, the older the child is, the more important the child’s wishes are. In case of children 12YO and older, the child’s wishes play an outsize role in the court decision.
• While immoral, influencing of a child by the care-taking parent against the contact seeking step-parent is often successful. The act itself may be viewed negatively by the court. But it falls short of swaying the case against the “influencer” parent.
• The law states that a custody related trial should be decided as soon as possible, usually within 6 months. The above case was within this limit. Beware, however, that proceedings sometimes take significantly longer.

Summary

A step-parent may be able to achieve a court decision granting them visitation rights (contact). However, such decision must be deemed in line with the child’s best interest. That usually requires also the child’s active role in the proceedings. I.e. the child stating that they themselves wish for the contact with step-parent to be maintained. Time is of the essence in the case. Both as regards length and depth of the bond between the step-parent and the child. As well as starting of the proceedings as soon as the need to do so arises.

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