Disputes concerning a child

Disputes concerning the habitual residence of the child

There are no disputes between the parents who live together regarding which parent the child should live with. However, the father and the mother who live separately from each other must decide with which parent the children will live and must resolve this matter. The essential rule is that the parents themselves agree with whom the child will live.

The mediation procedure can help in the search for a peaceful dispute resolution and a mutually acceptable compromise. Unfortunately, the parents not always manage to find a compromise and joint solution regarding the establishment of the habitual residence of the child. Where dispute arises in relation to the establishment of the habitual residence, the decision shall be adopted by the third party, i.e. by the court.
 

The habitual residence of the child must be established with one of the parents in the following cases:

• The marriage is declared invalid
• The marriage is dissolved
• After the judgement has been adopted by the court regarding the separation of the spouses  

• In cases where the child was born to the unmarried parents and the parents live in separation and fail to agree regarding the habitual residence of the child.

When the spouses with minor children bring a legal action before the court for the dissolution of the marriage or annulment thereof as well as for the separation, they must also make a claim regarding the establishment of the habitual residence of the minor children if their habitual residence has not been established by the agreement between the parents. If the habitual residence of the child is established by the agreement between the parents, then such the agreement must be enclosed to the legal action that is being brought before the court. The matter concerning the habitual residence of the minor children must be resolved in the agreement on after-effects of divorce submitted to the court when both spouses have file for divorce under the mutual consent. If the agreement does not resolve this matter, the court does not confirm such the agreement because such the agreement would in principle infringe the interests of the minor children, and suspends the proceedings regarding the dissolution of the marriage until the spouses will enter into the new agreement.

If the child was born to the divorced parents or the court has adopted the judgement regarding the separation of the spouses, or the parents of the child have not been married and the parents fail to agree peacefully regarding the habitual residence of the child, then the father (mother) of the child must bring a separate legal action before the court regarding the establishment of the habitual residence of the child. The claimant must specify those circumstances as a plea and provide with the supporting evidence to justify the plaintiff‘s claim to establish the habitual residence of the child with one of the parents. The plaintiff must justify why it is worth to establish the habitual residence of the child with the plaintiff instead of the other parent and why this would be in the best interests of the child.

In the opinion of the State Child Rights Protection and Adoption Service under the Ministry of Social Security and Labour, when establishing the habitual residence of the child it would be advisable to establish the procedure of the relationship of the child with the parent who lives separately. It is often the case that the parents do not seek to establish a specific procedure of the access to the child. Therefore, it is stated in the court judgement (that resolves the matter of the habitual residence of the child) that the procedure of access by the parent who lives separately to the child shall be established by both parents by the mutual agreement. The Service recommends to establish at least the basic guidelines for communicating with the child when resolving at the court the matter of establishing the habitual residence of the child because, otherwise, when one parent does not allow the child to communicate with another parent, it is in practical terms impossible to apply to bailiff regarding the enforcement of the court judgement.

The following parties may plead in court regarding the establishment of the habitual residence of the child:

• The father of the child
• The mother of the child
• The parents (foster parents or guardians) of the legally incapacitated minor parents


The circumstances assessed by the court in resolving a dispute regarding the establishment of the habitual residence of a child

When resolving the dispute between the parents who live separately from each other regarding the establishment of the habitual residence of the child the court must clarify and find out the following facts of legal significance:

• the possibilities and endeavours of each parent to ensure the implementation of the main rights and duties of the child established in the legal provisions by taking advantage of the state support;

• the conditions of the family environment of each parent, i.e. the conditions in which the child will have to live after the establishment of the habitual residence of the child with one of the parents;

• wishes and views of the child. When resolving the disputes regarding children the court must hear the child who is capable of expressing his or her views, and find out wishes of the child. The child who is capable to formulate his or her views must be heard directly, and in cases where this is impossible – through the representative. Wishes and opinions expressed by the child must be taken into account. As result of immaturity, upbringing gaps and for similar reasons, wishes and interests of the child not always coincide. Therefore, in each case it is necessary to find out whether the child's wishes correspond to his or her interests. If wishes of the child are contrary to his or her interests, the court must adopt the judgement in the best interest of the child.

A repeated legal action regarding the establishment of the habitual residence of the child

In the event of:
1) a fundamental change in the circumstances in relation to which the habitual residence of the child has been established together with one of the parents (such the facts as deterioration of the health, deterioration of the material situation, inadequate childcare and other important circumstances could be considered to be the circumstances that have changed fundamentally) or

2) if the parent with whom the habitual residence of the child has been established has given the child away to other persons with the purpose of raising the child (such the transfer of the child must be permanent and must interfere with the access of another parent to the child), then the parent with whom the place residence of the child has not been established may bring before the court a repeated legal action regarding the habitual residence of the child.

The establishment of the habitual residence of the child when the parents of the child reside in different countries:

It is established by the legal acts of the Republic of Lithuania that if the parents of the minor natural person do not have a common habitual residence, then the habitual residence of the parent with whom the minor lives most of the time shall be considered to be the habitual residence of the minor if the habitual residence of the minor together with one of the parents has not been established by the court.

The criteria on the basis of which it is possible to determine which country shall be considered to be the habitual residence of the child

The European Court of Justice has provided the interpretation that: the term “habitual residence” <…> must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother’s move to that State and, second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections which the mother and child have with that Member State. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case. If the application of the abovementioned tests were, in the case in the main proceedings, to lead to the conclusion that the child’s habitual residence cannot be established, which court has jurisdiction would have to be determined on the basis of the criterion of the child’s presence (the judgement of the European Court of Justice of 22 December 2010 in the case C-497/10 PPU).

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