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Divorce and child custody

How to organize the custody of the children during a divorce?

You are getting divorced and you have children? Do you want custody of your children but your spouse refuses? Do you need to choose a residence for your children but you do not know what type of custody to choose for your situation?  Are you trying to obtain visitation rights?

Understand everything about child custody in a divorce!

Who decides on the residence of the children?

When you divorce, you retain parental authority over your child and parents must continue to take part in their child’s life.

If you find an agreement with your spouse, you can fix the custody modalities in your divorce agreement, under the advice of your lawyers (Since 2017, divorce by mutual consent is realized without going before a judge).

If ever, you cannot agree with your spouse, the divorce agreement sets the child’s place of residence by looking at the best interest of the child. However, when you separate, you must agree on the choice of residence for your child, submitting this choice to your lawyers who will look at whether the child’s interests are respected.

Your spouse gets sole custody, what are your rights?

You can choose to have the child’s primary residence be either your or your spouse’s home, so the child is in the sole custody of one parent.

Even if your child lives with your spouse, you retain parental authority over your child, so you can fully participate in your child’s life, particularly by monitoring their schooling, leisure activities and health. The spouse who does not have custody of the child still has the right to visit and stay with the child.

If you cannot reach an agreement with your spouse, the judge will determine the terms and conditions of the access right, after inviting you to present your observations and requests. If the child can be heard by the judge, it is not the child who will decide whether or not there will be access, just as the judge cannot make access conditional on the child’s agreement.

It is possible that you benefit from visiting rights without benefiting from accommodation rights if your child is too young or if you do not have sufficient material means to accommodate them. You can only be denied access for serious reasons.

If the judge finds serious grounds for denying you access, what can you do?

You can ask that the visiting rights take place in a neutral place, and outside of divorce by mutual consent, ask the judge to organize the visiting rights in a space with the assistance of a trusted third party.

You decide to have alternating custody, what are your rights?

Your child will live alternately with you and your spouse.

You are free to choose the time and periods of the alternating residence, knowing that the judge will verify that the child’s interest is respected outside of divorce by mutual consent without a judge.

Thus, alternating custody does not require an equal sharing of custody time, it is however advised to choose a weekly custody rhythm, also providing for the distribution of custody time during vacations.

What are the criteria used by the judge to grant alternating residence?

  • The judge will check that the alternating residence allows for a continuity of your child’s lifestyle. 
  • Your two homes must be close to each other to make it easier for the child to travel.
  • Your child must be able to go to the same school.
  • Your child must be able to continue to see the same friends.
  • The age of your child is a determining factor; they must be old enough (at least 3 years old) to be able to handle this double residence.

How often should you choose to alternate the residence of your children ?

Often, we choose a weekly alternation of residence. However, everything is possible, especially if your spouse lives abroad, you can ask for an annual alternating residence, the judge will require conditions to guarantee the best interest of the child.

If you choose to have your child change residence every week, you can do so in a neutral place by picking up your child at the end of the week after school.

Your lawyers and the judge will be careful to ensure that the parents share similar lifestyles and educational methods, so a child must keep the same amount of sleep every week, and cannot be vegan every other week.

Remember that alternating residence does not mean strictly equal residence, it is possible to have alternating custody, with 1 week with one parent and 2 weeks with the other. The time of residence can be adjusted according to your work schedule.

You must adapt this alternating residence to the needs of the family and the child rather than having a stupidly egalitarian vision. Alternating residence does not prevent the payment of alimony.

Place your child with a trusted third party.

The judge may also, in the child’s interest, prefer to set the place of residence with your parents or your spouse’s parents or with a family member.

Always following the best interests of the child, the judge will always prefer to set the child’s residence with a family member.

If your spouse dies, what happens to the custody of the children?

If your spouse dies, parental authority will in principle devolve fully to the surviving parent. Therefore, you should regain sole custody of your children upon the death of your ex-spouse. However, the family court judge can derogate from this principle and fix the child’s residence with a third party.

Do you want custody of your children? You cannot agree with your spouse on the rhythm and the place of residence of your children? Is your spouse refusing you visitation rights? Contact an AGN lawyer in your area who will advise you, taking into account your interests and the interests of your children.

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