Vacationing with kids after a divorce: how to proceed if you can't agree with your ex?
Company: bnt attorneys-at-law s.r.o.
Summer holidays are coming and for some divorced parents, this time heralds fights with the ex over the possibility to take their kid on a proper vacation. If the other parent refuses to entrust you with the child for more than a weekend, what can be done? Parents have an equal right to spend holidays with their children.
Where parents of a minor divorce or decide to go separate ways, a court must rule on a guardianship arrangement – either by sanctioning a prior agreement between the parents as to questions of parental responsibility, residence, and contact, or by handing down its own decision as the authoritative arbiter. In both cases, a court decision comes into existence on either alternating custody or on the sole custody of one of the parents (along with rules regarding visitation and contact by the other parent). (Joint custody is a rarity in the Czech Republic.)
The rules set out in that decision generally only apply during the school year. During school holidays, a "holiday arrangement" is supposed to apply which (to simplify somewhat) makes it possible for both parents to go on vacation with their child.
However, sometimes there exists no holiday arrangement – either because the issue was given no specific consideration when the court-ordered custody schedule was handed down, or because a final decision on custody is still pending. In such a case, the parents' willingness and ability to reach consensus will determine how their summer holidays turn out. Sadly, it is not uncommon for parents to be unable to agree on specific dates, or even for one parent to refuse to let the other parent go on holidays with their child.
If no consensus can be reached, then the parent who has been prevented from going on vacation with their child has essentially two options. Of course, they could simply insist on the parenting schedule which applies during the school year. However, the time spans during which they are with their child are often very short, making e.g. a seaside stay practically impossible. In some cases, they have no contact with the child at all (because no custody decision has been handed down as of yet, and the parents are in disagreement).
The second option – and the only way to "get" one's child for a longer time period (e.g. for a trip to the beach) – is a preliminary injunction. By way of a preliminary injunction, the court imposes a temporary order on the relationship between parties before a decision on the merits is handed down. This definition of the preliminary injunction as a legal institution indicates that a formal court procedure (e.g. for determining custody) must always be initiated. Such a procedure may already be pending or may be initiated along with filing the motion for the preliminary injunction or may be opened in the wake of such motion.
In the motion for issuance of a preliminary proceeding, the relevant parent asks to be granted contact with the child on specific dates as set out in the motion (i.e., the dates of the planned vacation). It is important that the motion convince the court that a preliminary injunction is absolutely indispensable. In this sense, it is advisable to explain to the court how the petitioner made efforts towards an agreeable solution but was rejected by the other parent. It may also be helpful to present confirmation of booked lodgings for the vacation.
In the case of a motion for a preliminary injunction in child custody matters, no court fee will be charged, nor must a deposit for damages be made (which is otherwise customary in the case of preliminary injunctions).
The court will rule on the motion for a preliminary injunction within no more than seven days; the preliminary injunction itself is conditionally enforceable. With this in mind, the motion must be brought sufficiently in advance before the planned vacation, so as to give the court enough time to decide on the motion and to serve both parents with the relevant resolution. As soon as the resolution on the issuance of a preliminary injunction has been delivered to the other parent, the petitioner and their child can leave for their vacation without having to wait for the preliminary injunction to attain final force. In other words, the fact that the other parent may appeal the preliminary injunction cannot prevent the erstwhile parent from taking the child on the holiday trip.
Sec. 74 et seq. of the Code of Civil Justice (Act No. 99/1963 Coll.)